DeLong, Application of

• Decision Date: 09 November 1982
• Docket Number: No. 2,2
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of the Application of Dennis S. DeLONG, as Administrator of the Estate of Amalia DeLong, for Leave to Settle a Claim for Wrongful Death. Appeal

Page 896

455 N.Y.S.2d 896

89 A.D.2d 368

In the Matter of the Application of Dennis S. DeLONG, as Administrator of the Estate of Amalia DeLong, for Leave to Settle a Claim for Wrongful Death. Appeal No. 2.

Supreme Court, Appellate Division Fourth Department.

Nov. 9, 1982.

Palmer, Heffernan, Wickser & Beyer, Buffalo, for appellant County of Erie (John Heffernan, Buffalo, of counsel).

Garvey, Magner & Love, P.C., Buffalo, for respondent Dennis DeLong (Philip Magner, Buffalo, of counsel).

Before DILLON, P.J., and HANCOCK, DENMAN, MOULE and SCHNEPP, JJ.

HANCOCK, Justice:

Does a defendant, which has agreed to pay a certain sum to settle the damages claim of an estate subject to the approval of Surrogate's court, have a right to appeal from the court's refusal to approve the settlement? This question arises in the County's appeal from an order of the acting surrogate disapproving the petition of Dennis S. DeLong, as administrator of his wife's estate, to settle the liability of the County of Erie for his wife's conscious pain and suffering and for her wrongful death pursuant to EPTL 5-4.6. (The circumstances surrounding the death of Amalia DeLong which gave rise to petitioner's legal action for such damages against the County of Erie and City of Buffalo are detailed inDennis S. DeLong v. County of Erie and City of Buffalo, App.Div., 455 N.Y.S.2d 887, decided herewith.)

Although Dennis DeLong presented the petition, he has not appealed. On the contrary, he now asks, in the alternative, that the county's appeal be dismissed or that the order be affirmed. Nor has Michael G. Wolfgang, Esq., the guardian ad litem appointed for decedent's infant children, appealed.

The written settlement agreement drafted by Philip A. Magner, Jr., Esq., petitioner's trial attorney, was signed on behalf of the county and by petitioner (against Mr. Magner's advice) after all counsel had completed their summations and just prior to the commencement of jury deliberations. In it, the parties agreed that: "The liability of the County of Erie to the late Amalia DeLong is to be settled in the total amount of $175,000, subject to the approval of the court" and that "the agreement to settle is not to be disclosed until the jury verdict has been returned in its entirety, but will be disclosed thereafter." All of petitioner's rights to proceed against the City of Buffalo were specifically preserved.

The jury, without any knowledge of the agreement, proceeded to decide the case against both the city and the county and reported verdicts of $200,000 for conscious pain and suffering and $600,000 for wrongful death, a total of $800,000, which the jury apportioned equally between the defendants.

After a hearing on the matter conducted several weeks after the trial, at which Mr. Magner, appearing for the petitioner, the guardian ad litem, and the attorney for the County of Erie all urged approval, ¹ the acting surrogate, in a written memorandum, disapproved the settlement as inadequate in the light of the jury verdicts.

The test of whether a party is "aggrieved" and, therefore, permitted to appeal under CPLR 5511 is found not in the statute but in case law. To appeal to this court, it must appear that the party "has a direct interest in the controversy which is affected by the result" and that "the adjudication has a binding force against the rights, person or property of the party" (Matter of Richmond County Soc. for Prevention of Cruelty to Children, 11 A.D.2d 236, 239, 204 N.Y.S.2d 707). The fact that the adjudication "may remotely or contingently affect interests which represents does not give a right to appeal" (Ross v. Wigg, 100 N.Y. 243, 246, 3 N.E. 180; see 7 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 5511.03).

That it may be disappointed or even have been deprived of a financial benefit by the adjudication does not, without more, make a party "aggrieved". It must be shown that the party had some legal right or interest in the subject of the determination which was adversely affected thereby. Matter of Richmond County Soc. for Prevention of Cruelty to Children (supra) illustrates the point. There the court held that the Staten Island Mental Health Society had no right to appeal from a determination at Special Term that the funds of a defunct charity should go,...