Judges: Peters
Filed Date: 6/3/2010
Status: Precedential
Modified Date: 11/1/2024
Appeal from an order of the Surrogate’s Court of. Albany County (Doyle, S.), entered October 7, 2009, which denied petitioner’s motion for a genetic marker test and to vacate a prior order appointing a guardian ad litem for Jacob T. Burnside.
Decedent died in November 2007 after being struck by a vehicle in the City of Albany. Respondent, decedent’s mother, thereafter applied for and was granted limited letters of administration. In her petition, respondent averred that decedent had no children and identified herself as decedent’s sole distributee. In 2008, Surrogate’s Court approved a $50,000 settlement for respondent’s cause of action for decedent’s wrongful death and discontinued the claim for conscious pain and suffering.
In April 2009, petitioner was appointed as guardian of the person and property of her infant son, Jacob T. Burnside (born in 1995). She thereafter commenced this proceeding seeking,
Petitioner asserts that Surrogate’s Court abused its discretion in declining to vacate its prior order appointing McCarthy as guardian ad litem. A court is permitted to appoint a guardian ad litem to appear for an infant, even where the infant has another representative, where possible adversity or a conflict of interest exists, or for other cause (see SCPA 402 [2]; see also CPLR 1201). Here, Surrogate’s Court found a direct conflict of interest between petitioner and Jacob, and that petitioner’s counsel’s misunderstanding of SCPA article 4, coupled with his litigiousness, caused a “strong potential for a negative outcome” and a high probability of conflict with Jacob’s best interests. We address these findings in turn.
Surrogate’s Court’s determination that a direct conflict of interest existed between petitioner and Jacob—based on the parties’ status in this proceeding, petitioner’s possible “abanonment” of decedent and the potential effect this may have on the ultimate distribution of any wrongful death proceeds—lacks any factual or legal support. Simply stated, petitioner has no pecuniary interest in this proceeding or the underlying wrongful death action. She was never the spouse of decedent and is not a distributee of his estate, intestate or by testamentary substitute. Moreover, despite Surrogate’s Court’s suggestion to the contrary, any alleged abandonment of decedent by petitioner is wholly irrelevant to the distribution of wrongful death proceeds inasmuch as the parties were never married (see EPTL 5-1.2 [a] [5]). Clearly, petitioner has no pecuniary interest that may be deemed adverse to that of Jacob (compare Alcantara v Mendez, 303 AD2d 337, 338 [2003]; Matter of Holquin, 101 Misc 2d 174, 180 n [1979]).
Nor do we agree that the error by petitioner’s counsel in initially naming and referring to Jacob as the petitioner in this
Surrogate’s Court’s further finding—that, based on petitioner’s refusal to consent to respondent’s settlement offer of $5,000 and its own assessment of the merits of the case, counsel’s litigiousness had a “strong potential for a negative outcome” and had a high probability of being in conflict with Jacob’s best interests—is likewise flawed. To the contrary, the record reflects that petitioner’s refusal to accept the settlement offered by respondent was based upon an informed and reasonable judgment that the offer was not in Jacob’s best interests. “Where, as here, ‘reasonable minds may legitimately differ, the judgment of the infant’s natural guardian[ ] should prevail’ ” (Matter of Palmiere, 284 AD2d 965, 966 [2001], lv denied 97 NY2d 601 [2001], quoting Stahl v Rhee, 220 AD2d 39, 46 [1996]). Petitioner reasoned that the $5,000 settlement offer was “inadequate and unjust” because respondent was unjustly enriched by $50,000 inasmuch as Jacob, rather than respondent, should have been the sole distributee of decedent’s estate. Further, there is nothing to suggest that petitioner is unwilling to accept a reasonable settlement offer; indeed, petitioner’s offer to settle the action for $25,000 was rejected by respondent.
Moreover, while petitioner’s success in the wrongful death action may not be assured, we do not agree with Surrogate’s Court’s assessment that there is a “strong potential for a negative outcome” in the event that the matter presses forward. If petitioner can establish that Jacob is decedent’s child—which, as more fully discussed below, finds support in the record—she would then be required to void the previous decree of judicial settlement by which respondent received the $50,000 in insurance proceeds. In that regard, case law strongly supports an argument in favor of vacatur of that settlement, on the basis that respondent was ineligible to receive letters of administration and commence the wrongful death claim in the first instance (see Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687, 692-693 [1991]). For these reasons, it cannot be said that petitioner’s judgment in this matter has been unreasonable or contrary to Jacob’s best interests (see Stahl v Rhee,
We next address petitioner’s assertion that Surrogate’s Court improperly denied her pretrial request for genetic marker testing. At the time relevant to this proceeding, EPTL 4-1.2 provided that “[a] non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if . . . paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own” (EPTL 4-1.2 [a] [2] [former (C)]).
Nor has this Court addressed the issue. In Matter of Poldrugovaz (50 AD3d 117, 118 [2008]), the Second Department concluded that “a court may grant a pretrial motion for posthumous genetic marker testing when the applicant provides some evidence that decedent openly and notoriously acknowledged the nonmarital child as his own, and establishes that genetic marker testing is reasonable and practicable under the totality
Reviewing petitioner’s submissions in light of this standard, we find that the several pictures of decedent with Jacob and the affidavits submitted in support of the motion provide some evidence that decedent openly and notoriously acknowledged that Jacob was his child (see Matter of Poldrugovaz, 50 AD3d at 130; Matter of Wilkins, 180 Misc 2d 568, 569-571 [1999]). Furthermore, the proof submitted on the motion established that
Cardona, P.J., Her cure, Kavanagh and Garry, JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion granted.
. EPTL 4-1.2 (a) (2) (C) was recently amended to provide that a nonmarital child is the legitimate child of his father if “paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own.” Inasmuch as the amendment applies to the estates of decedents who died on or after its April 28, 2010 effective date (see L 2010, ch 64, § 4), it has no application to the facts of this case. Accordingly, in determining the appropriate showing that petitioner must make here on her application for a pretrial order for genetic marker testing, our analysis must be guided by the standard of proof imposed by EPTL 4-1.2 (a) (2) (former [C])—the law as it existed at the time of decedent’s death. We caution that, because the statute was changed so dramatically, this decision should not be read to apply to requests for pretrial genetic marker testing involving estates of decedents who died after the amendment’s effective date. To that end, we express no opinion as to the appropriate standard to be applied under EPTL 4-1.2 (a) (2) (C) as amended.
. In following the standard articulated in Poldrugovaz, we necessarily reject the Fourth Department’s view that a party seeking pretrial DNA testing need not first demonstrate that decedent openly and notoriously acknowledged paternity (see Matter of Morningstar, 17 AD3d 1060, 1060-1061 [2005]). Such a standard essentially “invit[es] the whole hopeful world to jump into the fray” without imposing any burden upon the applicant, which, in our view, is at odds with the intent of the Legislature in enacting EPTL 4-1.2 (Turano, 2006 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 17B, EPTL 4-1.2, 2010 Pocket Part, at 158).