Matter of Nunez

The compromise of a cause of action for decedent’s wrongful death and conscious pain and suffering was approved and attorney’s fees and disbursements were fixed and determined by order of the Supreme Court, New York County. That court also directed the payment of a Medicaid lien from the gross proceeds. The administrator’s petition for leave to allocate and distribute the net settlement proceeds 80% to the cause of action for wrongful death and 20% to the cause of action for conscious pain and suffering is granted. The restrictions contained in the letters issued to the administrator are modified to the extent necessary to collect and distribute the settlement proceeds. Petitioner requests that the wrongful death proceeds be allocated two-third to herself and one-third to Yudelka Perez, based on petitioner’s greater pecuniary loss. In allocating wrongful death proceeds, the court may consider numerous factors, such as decedent’s past support, history and relationship with the distributees (EPTL 5-4.4 [a][1]; see Matter of Feld, 153 Misc 2d 615 [Sur Ct, NY County 1992]). Based on the record before the court, and the absence of objections, the court grants petitioner’s request as to such allocation. The funeral expenses in the amount of $1,294 were paid by petitioner and she is authorized to reimburse herself for such expenses. Statutory commissions are allowed and are to be paid pro rata from the conscious pain and suffering and wrongful death proceeds (see EPTL 5-4.4[b]). Petitioner’s request to pay the Medicaid Lien solely from the proceeds allocated to conscious pain and suffering is denied, as payment of such lien was directed by the Supreme Court to be paid from the gross proceeds. The balance of the settlement proceeds shall be distributed to decedent’s issue, in accordance with this decision. Settle decree on notice upon Yudelka Perez by both regular and certified mail. The Clerk of the Court is directed to mail a copy of this decision, which constitutes the order of the court, to Yudelka Perez by both regular and certified mail. Dated: September 29, 2022