Opinion
2011-99516
04-29-2015
In the Matter of the Application of JANE PRATER, as Executrix of Billy Prater, Deceased, For leave to compromise a certain cause of action for wrongful death of the decedent and to render and have judicially settled an account of the proceedings as such Executrix.
CAROL L. SCHLITT, ESQ. Attorney for Petitioner JANE PRATER 79 Wall Street Huntington, New York 11743 JAMES YASTION, ESQ. Attorney for Objectants CHRISTOPHER PRATER and JESSE PRATER 275 Main Street New Paltz, New York 12561
CAROL L. SCHLITT, ESQ.
Attorney for Petitioner
JANE PRATER
79 Wall Street
Huntington, New York 11743
JAMES YASTION, ESQ.
Attorney for Objectants
CHRISTOPHER PRATER and
JESSE PRATER
275 Main Street
New Paltz, New York 12561
James D. Pagones, J.
As a result of the court's decision and order, dated and entered February 10, 2015, a hearing was conducted pursuant to EPTL §5-4.4(a)(1) on March 12, 2015 to determine the allocation of wrongful death proceeds in the overall sum of $425,000.00, authorize payment of legal fees ($118,056.86) and disbursements ($2,772.54) out of the proceeds to attorney Carol L. Schlitt and consider the reimbursement claim of Jesse Prater ("Jesse") for $1,100.00 which he claims he advanced towards the decedent's funeral bill.
Also pending further decision by the Court are branches (4) through (7) of the petition filed by the decedent's surviving spouse and executrix, Jane Prater ("Jane"), more fully described in the February 10, 2015 decision and order.
The witnesses who testified at the hearing were Nancy Swanson (decedent's sister), Daniel Prater (decedent's brother), Jesse Prater (decedent's son and objectant), Christopher Prater (decedent's son and objectant), and Jane Prater.
The certainty of words always depends upon the integrity of the speaker. "For the ear tests words, as the mouth tastes food." JOB 34:3. I had the unique opportunity to observe the testimony of the witnesses. In so doing, I considered the following factors in weighing their testimony: the interest or lack of interest of the witness in the outcome of the proceeding, potential bias or prejudice on the part of the witness, the appearance, sincerity, demeanor, the manner in which the witness gave testimony, the opportunity the witness had to observe the facts about which he or she testified and the probability or improbability of the witness' testimony when considered in the light of all of the other evidence. (See PJI, Vol. 1A, 1:8.) I found all of the witnesses credible, not mendacious. (PJI, Vol. 1A, 1:41; Goldstein v. Guida, 74 AD3d 1143, 1144 [2d Dept. 2010]; Ivani v. Ivani, 303 AD2d 639, 640 [2d Dept. 2003].)
The court has taken judicial notice of undisputed court records and files. (Kingsbrook Jewish Medical Center v. Allstate Insurance Company, 61 AD3d 13, 20 [2d Dept. 2009]; Khatibi v. Weill, 8 AD3d 485 [2d Dept. 2004].)
The following is the court's decision, stating the facts it deems essential. (Gouvis v. Gouvis, 44 AD3d 618 [2d Dept. 2007], lv appl den'd 10 NY3d 701 [2008]; Conklin v. State, 22 AD2d 481, 483 [3d Dept. 1965]; CPLR §4213[b].)
The New York Department of Taxation and Finance previously filed its notice of appearance and consent to the relief requested by the petitioner.
An objection raised by counsel for the objectants that the Court should determine the reasonableness of attorney Schlitt's fee request was overruled. Attorney Schlitt fully complied with 22 NYCRR §691.20(e)(2) which pertains to recoveries in wrongful death actions in the computation of her requested fee. The calculation is fully set forth in the retainer agreement attached to attorney Schlitt's affirmation, dated August 26, 2014. Moreover, the disbursements her office advanced in the prosecution of the action are justified and eligible for reimbursement. Attorney Schlitt's fee is approved in the sum of $118,056.86, together with disbursements in the amount of $2,772.54, for a total of $120,082.94.
JESSE PRATER
(Funeral Bill)
Jesse testified that his wife gave the funeral director $1,100.00 in cash at the funeral home as a partial payment towards the decedent's bill. No receipt was produced, and Jesse's wife was not called to corroborate his testimony. Jane testified she advanced $500.00 towards the bill. She claims she observed Jesse personally give $300.00 to the funeral director.
The Court accepts Jane's version of what transpired. Jesse Prater shall be reimbursed the sum of $300.00 from the wrongful death settlement proceeds.
ALLOCATION
The principle that an adult distributee can state a claim for pecuniary injuries based on the loss of a parent's guidance within the context of a wrongful death settlement was established in Tilley v. Hudson, 29 NY 252 (1864). Recovery is not barred solely because an adult child is self-supporting. (Gonzalez v. NY City Housing Authority, 77 NY2d 663, 669 [1991].) The recovery is based upon the monetary replacement for the intangible benefits of the deceased parent's nurture and care, from the loss of physical, moral and intellectual training that formerly existed. (Kenavan v. City of New York, 120 AD2d 24, 33 [2d Dept. 1986], aff'd 70 NY2d 558 [1987]; Matter of Feld, 153 Misc 2d 615, 620 [Sur. Ct NY Cty 1992].) Factors for consideration are the decedent's income, habits, prior relationship to the distributees, their needs, circumstances and history of receiving benefits, and any other evidence indicating the decedent's proclivity to provide assistance to a distributee. (Matter of Feld, supra, at 620; Matter of Duffy, 208 AD2d 1169, 1170 [3d Dept. 1994], lv appl den'd 85 NY2d 802 [1995].)
At the outset, it is this Court's position that it will not be comparing the degree of grief or emotional pain suffered by Jane, Jesse, or Christopher Prater. Nor is it being called upon to resolve the issues of whether the decedent was happily married or the financial, gambling and drinking habits of the decedent and Jane. (Matter of Feld, supra, at 621.)
The evidence indicates that Jane and the decedent were married on August 30, 1984. They were married and living together for over twenty-six (26) years when he passed away on December 8, 2010. The decedent was retired and on a fixed income. He would occasionally undertake side jobs to earn extra income which he shared with his sons. Jane is the stepmother to Jesse and Christopher. She acknowledged that the decedent would periodically give cash outright or cash earned from side jobs to his two sons to assist them with their bills. He would also babysit Christopher's children on Monday mornings and as needed for the benefit of Christopher and his wife, both of whom worked.
The evidence indicates that the decedent assisted Jesse (now 38) with loans, provided financial support so that he could attend and eventually graduate from the Culinary Institute of America in 2000, co-sign for an automobile loan, help him obtain auto insurance, wire him money, provide advice and direction, gas money and living accommodations for about two years until Jesse moved permanently to live in New York City in 2004-2005. The decedent never wrote him a check. He always gave him cash.
Christopher (now 43) lives in Salt Point, New York. He and his wife are the parents of three (3) children: Tyler-19, Jacob-17, and Ava-7. The decedent was always there as a "cushion" to help him and his family cope with financial challenges such as food for the grandchildren, gas money, funds to pay the electric bill, rent money, and cash for golfing, hunting and fishing excursions. He also provided child care as needed except for a four year period when Christopher and his family resided in Seattle, Washington. The decedent would also help Christopher with house repairs. The evidence indicates that Christopher has always had a strained relationship with Jane. He is now on food stamps, and in his own words, "I'm not good with money." Relations between Jane and Jesse were also awkward but not as pronounced.
While the decedent's sister, brother, and two sons were less than complimentary in expressing their opinions about Jane, she to her credit, never responded in kind.
In considering and evaluating the cited factors and applying them to the evidence adduced at the hearing, a division of ninety percent (90%) of the wrongful death proceeds is awarded to Jane and the remaining ten percent (10%) is to be divided evenly between Jesse and Christopher.
Paragraphs 1 through 3 of the pending petition to compromise and settle the wrongful death settlement was previously granted without opposition in the Court's decision and order, dated February 10, 2015. As to paragraph 4, Jane Prater is directed to amend her account to reflect the determination set forth in this decision. Paragraph 5 of the petition is granted concerning the counsel fee plus disbursements application by attorney Carol L. Schlitt. Paragraph 6 of the petition is granted to the extent that Jesse Prater shall be reimbursed the sum of $300.00 from the balance of the wrongful death proceeds ($304,170.60). From that amount ($303,870.60), Jane Prater shall receive ninety percent (90%) of the settlement proceeds ($273,483.54), and the remaining ten percent (10%) ($30,387.06) shall be shared equally ($15,193.53 per person) between Jesse and Christopher Prater. Paragraph 7 of the petition is granted. Jane is authorized to execute and deliver a full and final release to conclude the underlying wrongful death action upon payment of the sums outlined above.
Attorney Schlitt is directed to submit a decree on notice consistent with the foregoing within ten (10) days from the date of ths decision.
The foregoing constitutes the decision of the Court.
Dated:Poughkeepsie, New York
April 29, 2015
ENTER
HON. JAMES D. PAGONES, S.C.J.