ESTATE OF SHAH MOHAMMED ALI, Deceased (653/A/2010) — The administrators, the decedent's spouse and an attorney, seek to compromise causes of action arising from the decedent's death and judicially account for the settlement proceeds and a no-fault death benefit.

The decedent died intestate on July 26, 2009, allegedly as a result of injuries sustained as a pedestrian when he was struck by a hit-and-run motor vehicle that was subsequently located. The decedent's distributees, who reside in Bangladesh, are the spouse and two daughters who were under the age of 21 at the decedent's death, one of whom remains an infant. The co-administrator attorney is the guardian of the infant's property. The adult daughter was served with process and defaulted. The guardian ad litem for the infant distributee recommends approval of the application, including distribution pursuant to Matter of Kaiser (198 Misc 582 [1950]) and that, as the funeral creditor waived reimbursement for his payment of the decedent's funeral expenses, the no-fault death benefit should be paid to the spouse (see EPTL 4-1.1; 5-1.1 [A]; 5-3.1). However, as the no-fault insurance payer will not send payments out of the country, the no-fault payment should be paid to the attorney for the spouse for her benefit. Under the circumstances presented, including the consent of the New York State Department of Taxation and finance and that the decedent died at the accident scene, the court grants the request to allocate the entire settlement proceeds to the wrongful death cause of action.

Disbursements are allowed in the sum requested. Inasmuch as the infant is not bound by the terms of the retainer agreement and considering the legal services performed prior to the proposed settlement, counsel fees for the infant's share are allowed in the reduced share of 28 percent with respect to the infant's share (see Matter of Muccini, 118 Misc 2d 38 [1983), and otherwise are allowed pursuant to the terms of the retainer agreement as to the shares of the adult distributees. The net distributable proceeds are to be paid pursuant to Matter of Kaiser (198 Misc at 582), as follows: 71.11 percent to the spouse, 11.95 percent to the adult daughter and 15.94 percent to the infant. The no-fault death benefit is to be paid to the spouse's attorney for the spouse's benefit. The infant's funds are to be paid to the duly appointed guardian of the infant's property, jointly with the Guardian Clerk of this court, subject to the further order of this court.

Settle decree.

February 4, 2013