For leave to allocate and distribute the net settlement proceeds derived from a cause of action for decedent’s conscious pain and suffering and to judicially account for the proceeds thereof as Administrator.DECISION On September 16, 2011, Carlos Ramos was hit by a motor vehicle while walking across Ninth Avenue and 14th Street in the Borough of Manhattan. As a result of the accident, Mr. Ramos sustained a compression fracture of the thoracic spine, which required two weeks of hospitalization. After being released from the hospital, Mr. Ramos retained the law firm of Keith D. Silverstein & Associates, P.C., to commence an action against the owner and the driver of the motor vehicle to recover damages for his conscious pain and suffering. An action was commenced in Supreme Court, New York County, against these defendants. However, before the case was concluded, Mr. Ramos died from causes unrelated to the accident.The Public Administrator of the County of New York (“the PA”), as administrator of Mr. Ramos’s estate, was substituted in the underlying action for decedent. Based on the facts and circumstances of the case, and on the advice of trial counsel, the PA accepted an offer of $95,000 to settle the cause of action. By Orders dated May 17, 2016, and October 26, 2016, respectively, the New York County Supreme Court approved the settlement, fixed the attorneys fees and disbursements of Keith D. Silverstein & Associates, P.C., and Schram Graber & Opell, P.C., counsel to the PA, and directed the payment of $20,000 to Law Cash, a pre-settlement funding company. The May 17, 2016 Supreme Court Order also directed that the net settlement proceeds be held in an interest-bearing escrow account.Now, the PA seeks to judicially settle an account of her proceedings as Administrator of decedent’s estate. In her petition, the PA seeks statutory commissions in the amount of $3,155.70, as well as reimbursement for statutory administration expenses pursuant to SCPA 1106, in the amount of $631.14. The PA also requests that the claim of Felix Ramos, if any, for reimbursement for decedent’s funeral expenses be adjudicated, and that a hearing be held to determine the identity of decedent’s distributees or, in the alternative, that the balance of the funds be deposited with the Commissioner of Finance of the City of New York. The court appointed a guardian ad litem (SCPA 403) to represent the interests of Jose Ramos, Ted Melendez and Elizabeth Melendez, decedent’s alleged distributees whose whereabouts are unknown, as well as the interests of decedent’s unknown distributees.A kinship hearing before a court attorney-referee took place on November 30, 2017. However, none of decedent’s alleged distributes attended the hearing or presented any kinship proof. Therefore, the PA’s counsel requested, on the record, that the net proceeds be deposited with the Commissioner of Finance of the City of New York for the benefit of decedent’s unknown distributes. The guardian ad litem, Irwin Kahn, Esq., subsequently filed a written report agreeing that, in the absence of any kinship proof, the net estate should be placed on deposit.Under the circumstances presented, the petition is granted. Statutory commissions and reimbursement for administrative expenses of the PA are approved in the sums requested. Although given an opportunity to submit documentary proof substantiating his claim for reimbursement of decedent’s funeral expenses, decedent’s alleged brother failed to do so. Therefore, the PA’s rejection of his claim is approved for lack of substantiation.Based on the lack of proof submitted at a kinship hearing, the PA is directed to deposit the net settlement proceeds with the Commissioner of Finance of the City of New York for the benefit of decedent’s unknown distributees subject to further order of this court (see 22 NYCRR 207.25).Settle Decree with a provision fixing the compensation of the guardian ad litem.Dated: August 22, 2018SURROGATE
