Sutherland v. City of New York , 483 N.Y.S.2d 307 ( 1985 )

Kupferman, J.,

dissents in a memorandum as follows: The court stands in the position of parens patriae and must act in the best interests of the infant. (See Matter of Sanjivini K., 40 NY2d 1025, 1027.)

It is important that the infant plaintiff, whose legs have been amputated and who has suffered partial amputation of her upper extremities, be properly cared for. Moreover, the public and society at large should not have to bear the burden of her becoming a public charge.

The court, after due and intelligent deliberation, concluded that the mother, the natural guardian, was not fully qualified to make the determination with respect to the offer of settlement and replaced her as guardian ad litem (CPLR 1202) with an eminent trial lawyer in the negligence field, Richard Godosky, Esq., who could give mature, educated consideration to the proposed settlement.

The mother had originally indicated that she would approve a net (after deduction of attorney’s fees) settlement of $1,200,000. The problem then became one of whether it should be a cash payment or a structured settlement. (See Kelner and Kelner, Trial Practice, Structured Settlements, NYLJ, Nov. 14, 1984, p 1, col 1.) There was no indication that the mother had any special ability to administer so large a sum. The structured settlement had a present value of approximately $2,400,000 and would accomplish what was necessary for the care of the child.

Inasmuch as there is no actual determination as to the mother’s derivative suit for loss of services and expenses, we are not here confronted with that question, and she may pursue that on her own. We are concerned only with the rights of the child.

As indicative of the rationality of the trial court in its approach in removing the mother and appointing a substitute guardian ad litem, we need only consider a case presented to our court on the same day that this matter was before us, Marchello v Lenox Hill Hosp. (107 AD2d 566), wherein, in 1974, a mother settled and released a malpractice burn case on behalf of her child for $3,500 and later found that the infant had a “drop-foot” condition which it was contended was due to the burn injury and the malpractice that caused the burn. In the subsequent suit for the additional malpractice, this court dismissed the complaint because of the release given in the earlier suit. What better example can we have of the need for protecting the infant which goes beyond a natural guardian’s love and affection?