In re Demesyeux

• Decision Date: 23 December 2013
• Citation: 978 N.Y.S.2d 608,2013 N.Y. Slip Op. 23443,42 Misc.3d 730
• Parties: In the Matter of the Application of Innocent DEMESYEUX, as Administrator of the Goods, Chattels and Credits which were of Innocent Demesyeux, Jr., 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 Administrator. In the Matter of the Application of Innocent Demesyeux, as Administrator of the Goods, Chattels and Credits which were of Michael Demesyeux, 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 Administrator.
• Court: New York Surrogate Court

42 Misc.3d 730

978 N.Y.S.2d 608

2013 N.Y. Slip Op. 23443

In the Matter of the Application of Innocent DEMESYEUX, as Administrator of the Goods, Chattels and Credits which were of Innocent Demesyeux, Jr., 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 Administrator. In the Matter of the Application of Innocent Demesyeux, as Administrator of the Goods, Chattels and Credits which were of Michael Demesyeux, 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 Administrator.

Surrogate's Court, Nassau County, New York.

Dec. 23, 2013.

Lesley M. DeLia, Director, Mental Hygiene Legal Service, Mineola.

Kenneth J. Weinstein, P.C., Garden City, for guardian ad litem for Unnamed Half Siblings.

Jennifer F. Hillman, Esq., Peter K. Kelly, Esq., Ruskin Moscou Faltischek, P.C., Uniondale, for co-guardians ad litem for Leatrice Brewer.

Thomas J. Foley, Esq., Foley Griffin, LLP, Garden City, attorney for Innocent Demesyeux.

EDWARD W. McCARTY III, J.

In this proceeding for leave to compromise an action for wrongful death, the adequacy of the settlement was approved by the order of the Supreme Court, Nassau County, Hon. Thomas Feinman, on March 7, 2012. Justice Feinman's order also fixed attorneys' fees and disbursements and, by discontinuing the cause of action for conscious pain and suffering, effectively allocated all of the net proceeds to the cause of action for wrongful death. Pursuant to Justice Feinman's order, the net proceeds of $162,271.96 are to be held by plaintiff's counsel in an “interest bearing escrow account pending a Surrogate's Decree distributing the net proceeds to the appropriate distributees ...”

The facts of this case make that determination a case of first impression in New York. Although the New York courts have addressed the question of whether a person who is found not responsible by reason of mental disease or defect (insanity) is disqualified from sharing in the estate of his victim under the doctrine enunciated in Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 [1889], no New York court has decided the specific issue before this court, i.e., whether a person who pleads not guilty by reason of mental disease or defect in a criminal proceeding is disqualified from sharing in the proceeds of a wrongful death compromise arising out of the killing of her children at her own hands. Today this court answers that question in the affirmative and finds that, based upon the principles of equity and a lower standard of mens rea applicable in the civil context, the respondent Leatrice Brewer is disqualified as a distributee of her children, Innocent, Jr. and Michael.

The petitioner-father, Innocent Demesyeux, Sr., has the burden of proof on whether Leatrice Brewer is disqualified. The petitioner-father and the guardian ad litem for possible unknown distributees rely on the doctrine articulated in the seminal case Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 [1889]. In that case, the court held that a grandson could not inherit from his grandfather where he had murdered his grandfather in order to inherit from him. In Riggs v. Palmer, 115 N.Y. 506, 511, 22 N.E. 188 [1889], the Court of Appeals articulated the long-accepted principle that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” The principle appears to be an adaptation of the equity maxim “Ex turpi causa non oritur actio,” or in other words, that persons may not rely upon their own violations of law as a basis for a claim.

The court notes that while the Riggs v. Palmer doctrine is relevant to the circumstances before us in this case, since the issue of Ms. Brewer's disqualification has been raised in the context of the compromise of a wrongful death action, the court's analysis must begin with the wrongful death statute.

Thus, the court must analyze whether under the relevant wrongful death statutes, Ms. Brewer should be disqualified from receiving a share of the wrongful death proceeds on the basis that her children died as a result of her actions. A basic consideration in the interpretation of a statute is the general spirit and purpose underlying its enactment, and that construction is to be preferred which furthers the object, spirit and purpose of the statute (Rankin v. Shanker, 23 N.Y.2d 111, 295 N.Y.S.2d 625, 242 N.E.2d 802 [1968] ). Therefore, the courts in construing a statute should consider the mischief sought to be remedied by the legislation, and they should construe the act in question so as to suppress the evil and advance the remedy. Moreover, “courts generally interpret a statute to conform with common-law concepts where the letter of the statute is silent about consequences analogous to situations governed by common-law principles” (Sutherland, Statutory Construction § 56:3 [7th ed.] ).

EPTL 5–4.4 provides, in pertinent part, that the damages awarded in a wrongful death action represent “ fair and just compensation for the pecuniary injuries resulting from the decedent's death” (emphasis added). The damages are to be distributed “in proportion to the pecuniary injuries suffered by the decedent's distributees.” A parent may suffer a pecuniary injury if the parent had an expectation of the child supporting or otherwise financially helping such parent later in life. It is, of course, something of a fiction for a parent to have an expectation of support from his or her minor children. But, even assuming proof of such a pecuniary injury, EPTL 4–1.4(a) provides that a parent may be disqualified as a distributee for purposes of EPTL 5–4.4 if the parent abandons the child. Abandonment amounts to a voluntary breach or neglect of the duty to care for and train a child and the duty to supervise and guide the child's growth and development ( Matter of Wigfall, 20 Misc.3d 648, 652, 859 N.Y.S.2d 864 [Sur. Ct., Westchester County 2008] ). Viewed in the context of this wrongful death proceeding, the real issue before the court is whether, even assuming that Ms. Brewer suffered a pecuniary loss as a result of the deaths of Innocent and Michael, she is entitled to receive “fair and just compensation” on account of such pecuniary loss or whether she has forfeited that right.

In Matter of Sabol, 180 Misc.2d 855, 694 N.Y.S.2d 290 [Sup. Ct., New York County 1999], the decedent's mother and father physically abused their son, culminating in his death. The father pled guilty to manslaughter in the first degree and the mother pled guilty to two counts of assault in the second degree. Similar to this case, the decedent's estate commenced a wrongful death action against the City of New York and related entities claiming that the defendants were aware of the ongoing abuse and failed to prevent it. The court went on to find that the father was clearly disqualified as a distributee because he pled guilty to first degree manslaughter. Although the mother pled guilty only to assault, the court held that the mother was also disqualified not only on the common law principle of Riggs v. Palmer but also on the grounds of abandonment under EPTL 4–1.4(a). The court found that the situation fit “within the ambit of the statute in wording and spirit” even though it might not “be exactly what the drafters had in mind” (Id. at 856, 694 N.Y.S.2d 290). The court found that the mother was disqualified based upon her abuse and abandonment.

In addition, in Matter of Pesante, 37 A.D.3d 1173, 829 N.Y.S.2d 390 [4th Dept. 2007], the decedent child died while in foster care, after having been removed from her home as a result of the mother's neglect. Thereafter, the mother sought a share of the wrongful death proceeds. The court held that the mother had no cognizable claim for pecuniary loss because the decedent had been placed in foster care based upon her own neglect. The mother failed to establish that she had a reasonable expectation of future assistance from the decedent and failed to establish that she was entitled to damages for future pecuniary loss.

Ironically, in the instant case, the court notes that the gravamen of the wrongful death proceeding against the County of Nassau was that Child Protective Services failed to remove the children from Leatrice Brewer's care. Had the children been taken from Leatrice, as the court in Pesante pointed out, she would not have had a reasonable expectation of future assistance from the children.

In Matter of Sabol and Matter of Pesante, the court concluded that neither parent had a right to receive “fair and just compensation” for the loss of their child where their actions amounted to an abandonment of the child, and in the case of Sabol, actually resulted in the child's death. Complicating the situation here, however, is Ms. Brewer's plea of not responsible by reason of mental disease or defect.

Here, the common-law doctrine articulated in Riggs v. Palmer is relevant to the question of whether Ms. Brewer's plea prevents her disqualification as a distributee for purposes of the allocation of the wrongful death proceeds.

It is well established law that one who takes the life of another should not be permitted to profit from his own wrong and shall be barred from inheriting from the person slain (Matter of Covert, 97 N.Y.2d 68, 735 N.Y.S.2d 879, 761 N.E.2d 571 [2001]; Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 [1889]; Matter of Miller, 17 Misc.2d 508, 186 N.Y.S.2d 847 [Sur. Ct., Nassau County 1959]; Matter of Sparks, 172 Misc. 642, 15 N.Y.S.2d 926 [Sur. Ct., New York County 1939] ). In Riggs v. Palmer, 115 N.Y. 506, 511, 22 N.E. 188 [1889], the Court of Appeals articulated the basic principle that “[n]o one shall be permitted to profit by his own fraud,...