• Surrogate's Court, New York County
  • 2882-A/B/C/09
  • Jan 10 2013 (Date Decided)
  • Surrogate Mella

IN THE MATTER OF THE APPLICATION OF RUTH MACKINS, AS ADMINISTRATOR OF THE GOODS, CHATTELS AND CREDITS WHICH WERE OF SHIRLEY MACKINS, Deceased (2882-A/B/C/09) — This petition seeks to compromise for $190,000 an action raising claims of wrongful death, conscious pain and suffering, and violations of Public Health Law 2801-d and to allocate these proceeds to the claim of conscious pain and suffering. Decedent Shirley Mackins died intestate at age 73 on April 23, 2008. Decedent's administrator, her niece, brought the action in New York County Supreme Court, which centered on decedent's alleged negligent treatment and injuries sustained in a fall on November 7, 2007 at a geriatric center where she resided.

The administrator, who is not a distributee of the decedent, requests statutory commissions. Reimbursement for the expense of decedent's funeral is sought by decedent's brother, who is a distributee. Net of claims (including those settled by Medicaid and Medicare) and attorney's fees and disbursements, the petition proposes the appropriate distribution as per intestacy — equal shares to decedent's two siblings, her sole distributees.

This uncontested petition is granted with the following exceptions. First, the legal fees claimed ($3,436.56) for another firm's work on estate matters are above the one-third limit (net of certain expenses) set by court rule for a contingency fee in the settlement of a personal injury action (Rules of the App Div, 1st Dept [22 NYCRR] §603.7[e]). To allow these additional fees would circumvent that rule, and therefore, the excess of $3,436.56 is disallowed as an estate expense (see Matter of Hernandez, NYLJ, March 30, 2011, at 31 [Sur Ct, New York County]; Matter of Rose Anastasio, NYLJ, July 9, 2010, at 38, col 1 [Sur Ct, New York County]; Matter of Brown, NYLJ, Feb. 8, 1995, at 34, col 2 [Sur Ct, Bronx County]).

Second, the attorney's fees sought within the limits of this court rule are approved, but, as to disbursements, $676.08 of the $10,056.82 sought by counsel is not attributable to actual out-of-pocket disbursements (and instead relates to what is considered part of law office overhead — unexplained attorney travel expenses, copies, and phone charges) and is disallowed (see Matter of Herlinger, NYLJ, Apr. 28, 1994, at 28, col 6 [Sur Ct, New York County]).1

Third, statutory commissions were miscalculated in the petition and are approved in the correct amount of $8,600 (cf. EPTL §5-4.4[b]).

The proceeds are allocated to the cause of action for conscious pain and suffering, and the account is settled in conformity with this decision.

The restrictions on the letters issued by this court are removed, and the administrator is authorized to collect the compromise proceeds and to execute such receipts and releases as may be required.

The net settlement proceeds shall be distributed in equal shares to decedent's two siblings (EPTL §4-1.1[a][5]).

Decree settling the administrator's account signed.

January 10th, 2013

1. Included within this amount were disbursements for "postage," which could have been reimbursed, but counsel failed to "include[] an itemization of disbursements" (Uniform Surrogate's Court Rule [22 NYCRR] 207.38[d][5]), sufficient for the court to determine the amount spent thereon, and they are disallowed on this basis.