Cite as: Estate of Scott Joseph Eriksen, 604A2005/C, NYLJ 1202586649763, at *1 (Surr., SUF, Decided August 8, 2012)

Surrogate John M. Czygier

Click here to see Judicial Profile

Decided: August 8, 2012

ATTORNEYS

Attorneys for Petitioner: By: John Ray, Esq., John Ray & Associates, Miller Place, New York.

Attorneys for Respondent: By: Adam G. Wood, Esq., Wood and Associates, P. C., Kings Park, New York.

Michael T. Clancy, Esq., Guardian ad Litem, By: Susan Ann Flynn, Esq. Assistant County Attorney, Dennis M. Cohen, Esq., Suffolk County Attorney, Hauppauge, New York. By: John C. Miller, Associate Attorney, New York State Dept of Taxation and Finance, Albany, New York

DECISION/ORDER

 

*1

 

Captioned decedent died on June 12, 2005 at the age of twenty (20). According to the petition for limited letters of administration filed in this court, he was survived by his father, Gary A. Eriksen. With Gary A. Eriksen's consent, the decedent's aunt, Belinda Scott, received limited letters of administration on August 17, 2005. Those letters were revoked on May 8, 2007, whereupon limited letters of administration d.b.n. issued to Gary Eriksen. With leave of court, Gary A. Eriksen settled a personal injury action brought on behalf of captioned decedent's estate against the County of Suffolk and various other defendants in the United States District Court for the Eastern District, seeking compensation for conscious pain and suffering and wrongful death. The petition for leave to compromise the wrongful death cause of action specifically stated that the decedent "…had no issue (including children born out of wedlock)" and that Gary A. Eriksen was his sole distributee (Petition filed June 22, 2011, p. 4, ¶13). A decree issued July 15, 2011 allowing the net settlement of $2,017,646.35, having deducted attorneys' fees and disbursements, to be paid to Gary A. Eriksen.

In April of this year a petition was brought on behalf of

 

*2

 

Rebecca A. M. Schaefer ("Rebecca") seeking, inter alia, a determination of her status as captioned decedent's infant daughter, vacatur of the court's decree issued July 15, 2011, and injunctive relief pending the court's determination. A guardian ad litem was appointed to represent Rebecca in these proceedings. Gary A. Eriksen filed an answer asserting a number of affirmative defenses, including an assertion that another son (Gary Eriksen, Jr.) was Rebecca's biological father. Genetic marker DNA tests were performed with genetic material from the decedent, which was still in the Suffolk County Medical Examiner's possession, and with genetic material provided voluntarily by Gary Eriksen, Jr. After the results were obtained, counsel stipulated to the court making a determination on the papers submitted.

The guardian ad litem has filed his report, wherein he recites that the test conducted by Laboratory Corporation of America reflects that the probability that this decedent is Rebecca's father is 99.99 percent; and that the test conducted by the facility chosen by respondent, Genetic Technologies, Inc., excluded Gary Eriksen, Jr. as Rebecca's father finding that the relative chance of paternity as to the decedent is 99.9993 percent. The guardian ad litem recommends that the court grant petitioner's application and vacate the aforementioned decree and the decision precipitating same in recognition of Rebecca's paternity.

Although there are allegations in the papers supporting the pleadings herein concerning the family's awareness or lack of awareness of Rebecca's existence, there can no longer be any dispute over her provenance. Given the supporting affidavits concerning decedent's acknowledgment of Rebecca and the genetic marker test results, Rebecca appears to be the nonmarital child of Scott Joseph Eriksen (see In re Poldrugovaz, 50 AD3d 117; EPTL 4-1.2(a)(2)(D)).

As such, Rebecca is also Scott Joseph Eriksen's sole distributee (EPTL 4-1.1(a)(3)). This court has received disturbing testimony and statements concerning the remaining funds available from the above-referenced multi-million dollar settlement. Recovery of those proceeds and further proceedings, if any, against the fiduciary of this decedent's estate will require the appointment of a guardian of the property for

 

*3

 

Rebecca.

At this juncture, however, pursuant to its authority under CPLR 5015 and SCPA 209, the court is granting petitioner's application for relief. It is, therefore,

ORDERED that Rebecca A. M. Schaefer is determined to be the nonmarital child and sole distributee of decedent Scott Joseph Eriksen; and it is further

ORDERED that this court's decision dated July 8, 2011 and subsequent decree dated July 15, 2011 are vacated; and it is further

ORDERED that respondent Gary A. Eriksen is directed to refund net settlement proceeds previously distributed to him to an account, which he is directed to open if no such account exists, in the name of the Estate of Scott Joseph Eriksen for further proceedings and subsequent distribution consistent herewith; and it is further

ORDERED that there shall be no distributions from the aforementioned account in the name of the Estate of Scott Joseph Eriksen without further order of the court; and it is further

ORDERED that, for services rendered herein, the guardian ad litem is awarded the sum of $ to be afforded said guardian ad litem upon the filing of a supplemental report, on notice, pursuant to 22 NYCRR 207.13(b), indicating compliance with the within decision/order insofar as it affects the guardian ad litem's ward; and it is further

ORDERED that Gary A. Eriksen, his agents, employees, and all those acting in concert with him or them, and any other entity in control of the funds from the settlement of the wrongful death/personal injury action entitled Eriksen v. County of Suffolk, et al, CV06-2036 (EDNY), be and hereby are enjoined from accessing, secreting, dissipating, disposing, encumbering, assigning, removing, or otherwise transferring or reducing said funds beyond the extent necessary to comply with the directives contained herein.

Proceed accordingly.