ESTATE OF DOC GALLOWAY, ALSO KNOWN AS DOC CLEVELAND GALLOWAY, Deceased (10/908/A) — The administrator, the decedent’s spouse, seeks to compromise causes of action arising from the decedent’s death and judicially account for the settlement proceeds.
The decedent died intestate on July 27, 2009, allegedly as the result of medical malpractice. The decedent’s distributees are the petitioner and four children, two sons who were under the age of 21 on the date of the decedent’s death, one of whom remains an infant, and another son and a daughter who were both over the age of 21 on the date of death. The son who was under 21 on the date of death was served with citation and defaulted. The daughter appeared by counsel who did not oppose the application. After the court granted the application for poor person status by the over-21 son, who was then incarcerated (see CPLR 1101 [d]), that son filed pro se objections, and a guardian ad litem was appointed. After the over-21 son was released, he retained the guardian ad litem to privately represent him. After several conferences were held with a member of the court’s Law Department, counsel for the petitioner and the over-21 son, and the guardian ad litem for the infant, entered into a written stipulation that was “so-ordered” providing, inter alia, that: (1) a certain sum is to be paid to the over-21 son in satisfaction of his claims against the settlement proceeds by a $200 deduction from the infant’s distributive share and the balance by deduction from the spouse’s distributive share; (2) the distributive share of the defaulting son will not be diminished; (3) the over-21 son’s objections are withdrawn, and the application will proceed as an uncontested matter; and, (4) the over-21 son is solely responsible for the payment of legal services rendered by his attorney after being privately retained. Thereafter, the petitioner amended the account to comport with the so-ordered stipulation. The guardian ad litem appointed for the infant son now recommends approval of the application, as amended, including distribution of the net distributable proceeds pursuant to the formula enunciated in Matter of Kaiser (198 Misc 582 [Sur Ct, Kings County 1950]) and the purchase of deferred benefits with a portion of his ward’s distributive share. Under the circumstances presented, including the consent of the New York State Department of Taxation and Finance and the lack of any unpaid debts or claims presented herein, the court grants the request to allocate the entire settlement proceeds to the wrongful death cause of action.
