Eckel v. Hassan

• Citation: 61 A.D.2d 13,401 N.Y.S.2d 820
• Parties: William H. ECKEL, as administrator, etc., Respondent, v. James HASSAN et al., Appellants.
• Decision Date: 16 January 1978
• Court: New York Supreme Court — Appellate Division

Page 820

401 N.Y.S.2d 820

61 A.D.2d 13

William H. ECKEL, as administrator, etc., Respondent, v. James HASSAN et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Jan. 16, 1978.

Rivkin, Leff & Sherman, Garden City, for appellants.

Anthony V. Barbiero, P. C., Elmont, for respondent.

Before LATHAM, J. P., and RABIN, COHALAN and HAWKINS, JJ.

COHALAN, Justice.

The issue on this appeal involves the legal rights of an "illegitimate" child. It comes before us on a matter of pleading. Plaintiff seeks to amend both a complaint and a bill of particulars, in a wrongful death action, to include an allegedly posthumous child as a distributee of his putative father's estate's potential pecuniary award. Special Term granted the motion and we affirm the order entered thereon.

The issue further concerns an interpretation of chapter 357 of the Laws of 1975 which, in amending the Estates, Powers and Trusts Law, established a new section 5-4.5 ("Illegitimate children") ^* which proclaims that:

"For the purposes of this part, an illegitimate child is the distributee of his father and the father of an illegitimate child is that child's distributee."

By "this part" the Legislature was referring to part 4 of article 5 of the EPTL, entitled: "Rights of members of family resulting from wrongful act, neglect or default causing death of decedent."

In section 3 of chapter 357 the Legislature provided:

"This act shall not affect causes of action accruing prior to its effective date."

Section 4 thereof provided: "This act shall take effect immediately."

The effective date was July 1, 1975. The body of the amendment was adopted at the recommendation of the Law Revision Commission. (See McKinney's Session Laws of New York, 1975, pp. 1564-1567). The wording of section 3 was added by the Legislature on its own initiative.

On March 9, 1973 plaintiff's intestate, Kenneth H. Eckel, perished in a fire at his dwelling place (owned by defendants, or one of them) wherein he and his fiancee were then residing. His fiancee was about three months pregnant at the time. The couple had arranged to formalize their irregular union by being married the very next day, March 10. Fate willed otherwise. Both parents of the deceased survived him. Limited Letters of Administration were issued to his father on September 6, 1973. The child of the alleged union was born 12 days later.

On this appeal the position of the appellants is that the amendment is prospective in nature and cannot breathe actionable life into a tragedy that occurred more than two years before its enactment. The respondent maintains that the very wording of the amendment indicates retroactivity and that, in any event, the amendment is merely a clarifying statute, or a codification of existing case law.

We are called upon to construe the word "affect" as it instantly applies.

In Black's Law Dictionary (DeLuxe 4th ed., p. 79), "affect" is pertinently defined as "to act, or produce an effect upon * * * (a)cted upon, influenced, concerned". Thus, the word "affect" means to have an effect upon.

From these definitions we view the statute as if it reads: "This act shall have no effect upon causes of action accruing prior to its effective date".

We posit this reasoning on the belief that the Legislature did not act in a vacuum when it added the amendment. Common sense tells us that it was aware of the wrongful death actions discussed below, which antedated its passage. The modern trend is to treat "illegitimates", whenever it can be done, on the same plane as children born in wedlock.

This reasoning becomes especially true when we see the manner in which the courts have treated the problem. For example, for one to qualify as a distributee of an estate, as contrasted to sharing in the pecuniary award by way of verdict or settlement of a wrongful death action, an order of filiation declaring paternity during the lifetime of the putative father is required (Matter of Lalli v. Lalli, 43 N.Y.2d 65, 400 N.Y.S.2d 761, 371 N.E.2d 481 (Nov. 17, 1977), on remand from the Supreme Court of the United States (431 U.S. 911, 97 S.Ct. 2164, 53 L.Ed.2d 220) for further consideration in the light of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31; see, also, EPTL 4-1.2, subd. (a), par. (2); Family Ct. Act, § 517). No such limitation was placed upon sharing in the proceeds of the death action itself, assuming proof of the relationship to have been established. (See Matter of Ortiz, 60 Misc.2d 756, 303 N.Y.S.2d 806; Matter of Perez, 69 Misc.2d 538, 330 N.Y.S.2d 881; Matter of Johnson, 75 Misc.2d 502, 348 N.Y.S.2d 315.) Each of these three cases involved a wrongful death action on behalf of a child, or children, of the putative father. (See, also, Holden v. Alexander, 39 A.D.2d 476, 336 N.Y.S.2d 649.) This was pointed out strikingly in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436). There, on behalf of five "illegitimate" children, suit was brought for the wrongful death of their mother. After setbacks in the lower courts, the Supreme Court of the United States, in reversing, said that (p. 72, 88 S.Ct. p. 1511) "Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would.

"We conclude that it is invidious to discriminate against them when no action, conduct, or demeanor of theirs is possibly relevant to the harm that was done the mother." (See, also, Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441.)

In commenting upon the Levy decision, Surrogate SOBEL of Kings County noted, in Matter of Ross, 67 Misc.2d 320, 323, 323 N.Y.S.2d 770, 773:

"The point, of course, is that the Levy decision has commanded a 'judicial' amendment of the wrongful death distribution statute. It commanded that an illegitimate child be treated as a legitimate child. The statute (EPTL 5-4.4) must be read 'the damages * * * are exclusively for the benefit of the decedent's distributees which shall include illegitimate children '."

This theory was expatiated upon in 1972 in Holden v. Alexander (supra), wherein it was emphasized that an order of filiation was not a prerequisite to sharing in a wrongful death action award, as contrasted with sharing in the estate itself. There we held that where a putative father had supported a child for 17 years prior to her death in an automobile accident, and had permitted his name to be placed on both her birth and baptismal certificates, he could qualify as a distributee for the purpose of maintaining a wrongful death action, even though he had never obtained an order of filiation. The holding was on the ground of invidious discrimination.

It is worth repeating at this point that the Legislature inserted section 3 of chapter 357 of the Laws of 1975 at its own instance, even though the Law Revision Commission's suggestion that the act be effective immediately (see section 4 of chapter 357) was included in the chapter. This, we may reasonably infer, was to blunt the effect of the statement in section 52 of McKinney's Statutes (McKinney's Cons.Laws of N.Y., Book 1, p. 102) that "a provision in an amendatory statute that 'this act shall take effect immediately' has been held to exclude the idea that it should be retroactive" (citing Matter of Beckford v. Cheshire, 128 Misc. 10, 217 N.Y.S. 215; Abelson v. Abelson, 59 Misc.2d 172, 298 N.Y.S.2d 381).

...