Surrogate’s CourtSurrogate AndersonESTATE OF ROBERT E. LINTON, Deceased (16/1741; 16/1741/A);ESTATE OF ROBERT E. LINTON, Deceased (16/1741/B);ESTATE OF ROBERT E. LINTON, Deceased (16/1741/C) — The parties to the above-captioned proceedings have entered into a settlement agreement pursuant to which objections to probate are to be withdrawn, and the removal proceedings are to be discontinued.The guardian ad litem for Margot T. Linton, an incapacitated beneficiary, reports that the settlement is fair and in the best interest of her ward and recommends that the will be admitted to probate. The court concurs and authorizes the guardian to enter into the settlement and the stipulations of discontinuance on behalf of her ward. Compensation for the guardian ad litem is set forth in the decree.Decree signed.Dated: March 22, 2018ESTATE OF JAMES J. RAHAL, JR., Deceased (11/4542/B) — This is a motion pursuant to CPLR 2221, to reargue movant’s prior petition to terminate his father’s testamentary trust on the ground that the trust had not been funded, and was therefore “uneconomical” within the meaning of EPTL §7-1.19. The court denied his prior application by decision and order dated November 25, 2015 (Estate of James J. Rahal 2015 NYLJ Lexis 2789).A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221 [d] [2]). In his motion, petitioner asserts that the court overlooked and/or misapprehended the fact that the trust’s interest in the property “will have attendant costs such as trust accounting, trust tax returns and trust income taxes…” This assertion merely restates petitioner’s prior arguments and adds nothing to support his motion for reargument. Movant also contends that the cases cited in this court’s prior decision concerning trusts with illiquid assets are inapposite to the subject trusts consisting solely of real property. The court concludes that the proposed distinction is irrelevant for purposes EPTL §7-1.19.For the foregoing reasons, petitioner’s motion is denied. This decision constitutes the order of the court.Dated: March 22, 2018ESTATE OF JANIE FLOWERS, Deceased (11/2219/A) — The executor’s application for leave to compromise a cause of action for decedent’s conscious pain and suffering is granted to the extent set forth below. The executor is authorized to collect the settlement and execute the necessary receipts and releases.The fees and disbursements of petitioner’s attorney, Parker Waichman LLP, and the commissions of the executor are fixed and determined. The executor also seeks approval to pay Farrell Fritz, P.C., for its legal services as estate counsel. In any action for personal injury or wrongful death, the amount of legal fees for counsel retained under a contingency fee arrangement is limited by court rule (22 NYCRR 603.25[e]), and to allow any additional fees in the settlement of such an action would amount to a circumvention of that rule (see Matter of Falu, NYLJ Jan.22, 2015, at 24, col 5 [Sur Ct, NY County]; Matter of Cook, NYLJ, Aug.9, 2010 at 18, col 5 [Sur Ct, NY County]). Accordingly, the fee of Farrell Fritz, P.C., is to be paid from the legal fees approved for Parker Waichman LLP.The executor is authorized to pay $5,361 to himself for reimbursement of the funeral expenses. The executor is further authorized to pay $4,699.81 to Medicare and $25,369 to New York City Department of Social Services/HRA, in full payment of their respective liens. The balance of the settlement proceeds shall be distributed to the beneficiaries under decedent’s will as set forth in the decree.The account is settled and the decree is signed.Dated: March 23, 2018Surrogate MellaESTATE OF EDWARD J. WALEGUR, Deceased (13/998/B/C) — At the call of the March 13, 2018 calendar in this proceeding in which the identity of decedent’s distributees is a pivotal issue, the court determined the motion filed by petitioners seeking, among other things, an order directing the New York City Office of the Chief Medical Examiner (“OCME”) to release a sample of decedent’s bone in its possession to LabCorp, an accredited laboratory, for testing against the DNA sample previously provided by respondent, who claims to be decedent’s marital daughter.The court noted that the results of a properly administered genetic marker test may be used as evidence to rebut the presumption of legitimacy (Anonymous v. Anonymous, 1 AD2d 312 [2d Dept 1956]; see also Matter of Ludwig, NYLJ, June 21, 1994, at 30, col 2 [Sur Ct, New York County] [equitable estoppel argument of respondent who claimed to be decedent's marital daughter rejected and respondent directed to submit to blood test for results to be used to rebut presumption of legitimacy], aff’d at 239 AD2d 122 [1st Dept 1997]). The court also noted that the fact that the test is to be conducted posthumously does not change the determination since the results of a posthumous genetic marker test may be used to establish clear and convincing proof of paternity (see, e.g., EPTL 4-1.2 [a][2][C]).After hearing oral arguments from both sides, the court concluded that: (1) the evidence presented demonstrates a reasonable possibility that the genetic testing will yield information relevant to paternity; (2) the sample is readily available from the OCME; (3) there is no need to exhume the decedent’s body; (4) appropriate safeguards were, and will be, put in place to insure the reliability of the genetic material to be tested; and (5) the privacy and religious concerns of decedent and/or his family members do not bar directing such a test (see Matter of Poldrugovaz, 50 AD3d 117, 129 [2d Dept 2008]). The court, therefore, granted petitioners’ motion.Order signed.Dated: March 23, 2018ESTATE OF SHEILA WATTS, Deceased (11/3480/E/F/G) — The settlement of causes of action for decedent’s conscious pain and suffering and wrongful death were approved, the attorney’s compensation and disbursements fixed, and a Medicaid claim allowed, by an order of the Supreme Court, Bronx County, dated March 22, 2017. The administrator has petitioned for leave to allocate and distribute the net proceeds of these settlements.The restrictions on the letters of administration issued by this court are removed, and the administrator is authorized to collect the compromise proceeds. Petitioner’s request to allocate the entire settlement to the cause of action for conscious pain and suffering is granted.The administrator is authorized to pay herself commissions in the amount requested. The net proceeds shall be paid entirely to decedent’s son and sole distributee, James Watts, pursuant to EPTL 4-1.1 (a)(3).Decree settling Administrator’s account signed.Dated: March 22, 2018
