ESTATE OF JOANN E. BENDA, Deceased
ESTATE OF JOANN E. BENDA, Deceased — The administrator, the decedent's mother, seeks to compromise causes of action arising from the decedent's death and judicially account for the settlement proceeds, a no-fault death benefit and an investment account.
The decedent died intestate on October 4, 2007, allegedly as the result of injuries sustained as a pedestrian when she was struck by a motor vehicle. The decedent's presumptive distributees are her parents (see EPTL 4-1.1; 5-4.4). The decedent's father was served with process seeking to disqualify him from receiving a distributive share of the settlement proceeds and the decedent's estate on the grounds of abandonment and failure to support the decedent (see EPTL 4-1.4), and he defaulted. Traveler's Casualty & Surety Company of America, the bond surety, was served with process and there was no appearance in opposition. Under the circumstances presented, including the consent of the New York State Department of Taxation and Finance, the lack of any unpaid debts or claims presented herein, and that the decedent never regained consciousness after the accident, the court grants the request to allocate the entire settlement proceeds to the wrongful death cause of action.
Counsel fees and disbursements are allowed in the sum requested. After the deduction of the items listed in EPTL 5-4.4 (b), the petitioner may be paid statutory commissions on the residue. The sum of $10,797 is to be paid to the petitioner in reimbursement of the decedent's funeral expenses, and the sum of $2,800 is to be paid to her in reimbursement of the surety bond and filing fees.
Based upon the uncontroverted allegations contained in the verified petition; namely, that the decedent's father abandoned and failed to support the decedent from her childhood to the date of her death are deemed due proof thereof (SCPA 509). Accordingly, the court finds that the decedent's father is disqualified from sharing in the wrongful death proceeds or the estate assets on the grounds of abandonment and failure to support the decedent (see EPTL 4-1.4 [a] ; Matter of Arroyo, 273 AD2d 820 ). The net distributable proceeds, no-fault death benefit and the investment account are to be paid to the mother.
January 23, 2013