Smith, Application of
| Decision Date | 03 April 1980 |
| Parties | In the Matter of the Application of Mary E. SMITH, as Administrator of the Estate of Robert L. Smith, Deceased, for Leave to Compromise and Settle certain causes of action arising out of the death of Robert L. Smith, and for a determination of the proportions of the Pecuniary Injuries Suffered by Mother and Distributees of said Robert L. Smith. Surrogate's Court, Monroe County |
| Court | New York Surrogate Court |
MICHAEL A. TELESCA, Surrogate.
At this issue is the question of apportionment of the proceeds of a wrongful death action between the divorced parents of their deceased eighteen (18) year old son. The amount of the settlement (Twelve Thousand Dollars, ($12,000.00)) is not objected to. The only persons entitled to share in the recovery are the divorced parents.
The deceased was residing with his mother (the petitioner) and was paying her Twenty-five Dollars, ($25.00) for weekly room and board and thus, the mother claims total pecuniary loss is hers. The father claims that he was contributing to his son's support in the amount of Seventeen and 50/100 Dollars, ($17.50) per week, that he had not abandoned his son, and legally he should share equally in the proceeds of the settlement.
EPTL § 5-4.4(a)(1) provides for distribution of damages recovered in a wrongful death action as follows: "Such damages shall be distributed by the personal representative to the persons entitled thereto in proportion to the pecuniary injuries suffered by them . . .". The extent of the parents dependency upon the deceased and the probable benefits they would have received from him had he lived, determine the basis upon which damages are to be measured. EPTL § 5-4.3. However, financial dependency is not a precondition to recovery but is relevant in determining the amount of damages sustained. EPTL § 5-4.3, Wishart v. Andress, 46 A.D.2d 998, 361 N.Y.S.2d 791.
No provision is found in the law which allows one parent to share in greater proportion than the other unless that parent abandoned the child. EPTL § 5-4.4; and, EPTL § 4-1.4. Abandonment contemplates refusal of a parent to support or maintain the deceased child. Musczak's Estate, 196 Misc. 364, 92 N.Y.S.2d 97; EPTL § 4-1.4; Matter of Schiffrin's Estate, 152 Misc. 33, 272...
To continue reading
Request your trial
-
Hanson v. Erie County
...of the child must be distributed in equal shares to the surviving parents. We thus decline to adopt the decision in Matter of Smith, 103 Misc.2d 619, 426 N.Y.S.2d 442, where the Surrogate held that unless a divorced father had abandoned the child, he must be awarded an equal share of the pr......