Opinion
15418/2008
11-15-2011
Jimmy Ramos, an infant by his mother and x Natural Guardian MILEYDI RAMOS and MILEYDI RAMOS individually, Plaintiff, v. Joong Seok Seo and JINHY EOK PARK, Defendants.
For the Plaintiff: Donald H. Hazelton, P.C., by Donald H. Hazelton,, Esq. For the Defendants: Law Offices of Robert P. Tusa.
Appearances of Counsel:
For the Plaintiff: Donald H. Hazelton, P.C., by Donald H. Hazelton,, Esq.
For the Defendants: Law Offices of Robert P. Tusa.
Charles J. Markey, J.
By order dated July 30, 2009, this Court authorized Mileydi Ramos, the mother and natural guardian of the infant plaintiff Jimmy Ramos, to enter into a compromise of the infant's cause of action on his behalf. Of the total sum of $50,000 to be paid in full settlement of the infant's claim for pain and suffering, $25,000 was to be paid on behalf of defendant Joong Seok Seo by Allstate Insurance Company ("Allstate") and $25,000 was to be paid on behalf of defendant Jinhy Eok Park by Geico Insurance Company ("Geico").
After allowing for the payment of attorneys' fees to plaintiffs' counsel, the order directed that payment of the balance of the settlement be made by payments by Allstate and Geico, in the amount of $16,666.67 each, to Mileydi Ramos, the infant's natural guardian, jointly with an officer of the Flushing Savings Bank, located at 159-18 Northern Boulevard, Flushing, Queens County, New York, 11358, to be deposited in the bank in an interest bearing account or certificate of deposit paying the highest rate of interest available, in the name of Jimmy Ramos to the credit of said infant.
On this motion, the plaintiffs' attorney has advised the Court that the insurance companies forwarded the required payments on behalf of defendants to Mileydi Ramos. Sometime thereafter, however, counsel was informed that the checks had not been cashed. Upon investigation, counsel learned, and it is confirmed by an affidavit from the infant's mother, that Mileydi Ramos had been unable to open an account and deposit the settlement funds as directed by the Court because she does not have the valid social security number or tax identification number required to do so.
Plaintiffs, therefore, seek to amend the infant's compromise order dated July 30, 2009, to substitute Sara Ramos, the mother of Mileydi Ramos and grandmother of the infant plaintiff, in place of Mileydi Ramos as the person designated to receive the settlement proceeds jointly with an officer of the Flushing Savings Bank. In an affidavit submitted in support of this application, Sara Ramos has consented to be substituted for her daughter as the joint payee of the payments totaling $33,333.34 and has confirmed that she has a social security number that she will utilize to open the necessary account.
Pursuant to CPLR 1206, the trial court has discretion to invest or disburse the proceeds of an infant's recovery in order to serve the infant's best interest (see, Gold v United Health Servs. Hosps., Inc., 95 NY2d 683, 691-692 [2001]). The statute does not specify to whom the settlement funds are to be made payable; the matter is left for a court to decide in its discretion (CPLR 1206; 4-1206 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 1206.02). Under the circumstances herein, it would be in the best interests of the infant plaintiff to grant the requested relief.
There is no indication herein that the natural guardian's failure to deposit the proceeds as directed by the Court was the result of any wrongdoing or misappropriation (cf., Malik ex rel. O'Brien v Malik, 15 Misc 3d 883 [Sup Ct Suffolk County 2007]). The infant's grandmother has stated that she is aware that there can be no withdrawals from the account opened for the settlement monies until the infant's 18th birthday without a further order of this Court.
Mileydi Ramos clearly cannot effectuate the provisions of the settlement for the benefit of the infant plaintiff. Joint control of the proceeds provides a safeguard against misuse of the funds, and this Court deems it preferable that one of the parties receiving joint control have a close family relationship with the infant (see, 4-1206 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 1206.2.)
Accordingly, the motion is granted, and the infant's compromise order is amended only to the extent of substituting Sara Ramos, the infant's grandmother, for Mileydi Ramos, as the joint payee, with an officer of Flushing Savings Bank, of the sums to be paid by Allstate and Geico on behalf of defendants. Said relief is conditioned upon plaintiffs returning to Allstate and Geico the settlement payments previously received, but not deposited, by Mileydi Ramos.
Upon being served with a copy of the order to be entered hereon and receiving the returned payments, Allstate and Geico are directed to reissue the settlement payments to Sara Ramos, the infant's grandmother, jointly with an officer of the Flushing Savings Bank.
All other provisions of the infant's compromise order dated July 30, 2009, governing the deposit of the settlement proceeds, shall remain unchanged. A copy of the order to be entered hereon shall be served on Flushing Savings Bank.
Settle order on notice.
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J.S.C.