Surrogate’s CourtSurrogate MellaESTATE OF ARMANDO ALVAREZ, Deceased (16/4616/A) — At the call of the Calendar on November 17, 2017, the court directed a continuance to give objectant an opportunity to substantiate his assertion that discovery may uncover facts essential to support his opposition to the motion for summary judgment (CPLR 3212 [f]). A discovery schedule will be set following a conference with a court attorney-referee.This decision, together with the transcript of the November 17, 2017 proceedings, constitutes the Order of the court.Clerk to notify.Dated: February 15, 2018ESTATE OF ALLEN G. AARONSON, Deceased (16/3676) — At the call of the calendar on January 23, 2018, the court, constrained by the decision in AQ Asset Management LLC v. Levine (111 AD3d 245, 260 [1st Dept 2013]), denied the motion to quash subpoenas and for a protective order made by the proponents of an August 15, 2016 instrument as the will of decedent Allen Aaronson. Proponents failed to demonstrate that decedent, or they as decedent’s preliminary executors, had a proprietary or otherwise protectable interest in the bank records and documents sought, and consequently, they lack standing to make such a motion (id.; see Norkin v. Hoey, 181 AD2d 248 [1st Dept 1992]; see also legislative history of 2013 amendment to CPLR 3103, Sponsor’s Mem., Bill Jacket, L. 2013, c. 205). The proponents’ arguments that the subpoenas lacked proper notice of their “circumstances or reasons” (CPLR 3101 [a] [4]) or had not been served on the non-parties were also held to be meritless.The court on its own initiative, however, issued a protective order and limited the subpoenas issued by counsel to non-party banks as follows (see AQ Asset Management, 111 AD3d at 260). The following documents requested by the subpoenas served on JP Morgan Chase Bank, NA, Chase Bank, and Chase Private Bank were required to be disclosed if dated within the time period covered by the 3-year/2-year rule (22 NYCRR 207.27), which in this instance means documents created, sent, received, dated, or in effect from the period of August 15, 2013 through the date of decedent’s death on September 18, 2016:Documents or communications for accounts held by decedent alone or jointly with proponent Mary Benner, including account statements, correspondence, reports or bank records;All documents pertaining to safe deposit boxes, held by decedent alone, or jointly with proponent Benner or in the name of AVRS, Inc., including agreements, logs, inventories, documents describing the contents, or documents describing the times and dates when such safe deposit boxes were accessed, and documents indicating who accessed such safe deposit boxes.As to other documents sought by the subpoenas, the court issued a protective order preventing their disclosure.On the record, on January 23, 2018, the court also set the following deadlines: pre-objection discovery shall conclude no later than March 16, 2018, and objections, if any, shall be filed and served no later than March 30, 2018.This decision, together with the transcript of the January 23, 2018 proceedings, constitutes the order of the court.Clerk to notify.Dated: February 16, 2018ESTATE OF KENNETH A. FREELING, Deceased (17/1021/C) — On the January 9, 2018 return date of this application by petitioner, Sue Cimbricz, decedent’s former spouse and a creditor of his estate, to examine respondent Michael Goldberg, Executor of decedent’s will, the relief sought was granted and the court ordered the examination of respondent. The matter was then referred to the Law Department for a conference with a court attorney-referee. At the conference, the parties resolved their differences regarding disclosure related to this proceeding and thereafter a Stipulation dated January 26, 2018, was filed with the court.This decision, together with the transcript of the January 9, 2018 proceedings, constitutes the order of the court.Dated: February 16, 2018ESTATE OF DAVID BARRIERA, Deceased (11/3598/A/B/C) — The Administrator of decedent’s estate, his surviving spouse, seeks authority to compromise causes of action for decedent’s conscious pain and suffering and wrongful death. She also asks the court to authorize the collection of the $450,000 settlement proceeds of such causes of action. Petitioner seeks to allocate the settlement proceeds 100 percent to the cause of action for decedent’s conscious pain and suffering, discontinue the cause of action for decedent’s wrongful death, and judicially settle her account.The record reflects that decedent passed away at the age of 50 as a result of medical malpractice based on the alleged failure to diagnose decedent’s rectal carcinoma. For purposes of this compromise proceeding, decedent’s distributees are petitioner and Carmen Barriera, decedent’s post-deceased mother (see EPTL 5-4.4 [a]).This court appointed a guardian ad litem, pursuant to SCPA 403, to represent decedent’s siblings, the lawful distributees of the estate of decedent’s post-deceased mother, whose whereabouts are unknown. The guardian ad litem conducted an extensive and thorough investigation to determine whether a portion of the settlement proceeds should be allocated to the cause of action for decedent’s wrongful death and whether decedent’s mother suffered a pecuniary loss as a result of her son’s death (EPTL 5-4.4).In a comprehensive and well-reasoned report, the guardian ad litem concludes that no basis exists to allocate a share of the settlement proceeds to the cause of action for decedent’s wrongful death. He also concludes that no basis exists to assert a claim for pecuniary damages on his wards’ behalf since decedent’s mother did not sustain a pecuniary loss, decedent having been unemployed at the time of his death (see Gonzalez v. New York City Housing Authority, 77 NY2d 663 [1991]).After filing the underlying medical malpractice action in the Supreme Court, Bronx County in her capacity as fiduciary of decedent’s estate as well as in her personal capacity, petitioner filed a voluntary Chapter 7 bankruptcy petition seeking to discharge her debts. By order dated March 10, 2015, the United States Bankruptcy Court for the Southern District of New York approved the settlement of the underlying cause of action for $450,000 subject to this court’s determination of this compromise proceeding, approved the payment of fees to petitioner’s counsel also subject to this court’s review and approval, and authorized the bankruptcy Trustee to pay those fees after “the full settlement amount” was turned over to the Trustee. In her instant petition, petitioner requests that the settlement proceeds be paid to Albert Togut, Esq., of Togut, Segal & Segal, LLP, in his capacity as Chapter 7 Trustee of the estate of petitioner to enable the Trustee to pay “all the expenses of this action, including any liens asserted against the wrongful death claim”1 as well as the legal fees of petitioner’s counsel in the malpractice action, with the net proceeds being paid to petitioner in accordance with EPTL 4-1.1(a)(2).Based on the allegations in this uncontested petition and the report of the guardian ad litem, the court approves petitioner’s proposed allocation of the proceeds to the cause of action for conscious pain and suffering. The restrictions contained in the Letters of Administration issued to petitioner are removed, and she is authorized to execute such receipts and releases as may be required. Petitioner has waived statutory commissions (SCPA 2307), and reimbursement for decedent’s funeral services.Settle Decree directing payment of the settlement amount to the Trustee of the petitioner’s bankruptcy estate and with a provision for payment of the compensation of the guardian ad litem from the settlement proceeds.Clerk to notify.Dated: February 16, 2018
