The administrator, the decedent’s mother, seeks to lift the restrictions on her limited letters of administration so that she may judicially account and distribute the net proceeds of settled causes of action. Citation issued to the decedent’s father seeking to disqualify him from receiving a distributive share on the grounds of abandonment and failure to support the decedent (see EPTL 4-1.4), and he filed objections, upon which a hearing was held. The decedent sustained severe injuries on July 4, 2002 from a near-drowning at the age of 13 and remained comatose until his death on December 19, 2012. His presumptive distributees are his parents. At the hearing, testimony was received from the petitioner, and on her behalf, from the decedent’s maternal grandmother, maternal cousin and the petitioner’s daughter, the decedent’s half-sister. The father also testified, as did his current spouse and their daughter, another half-sister of the decedent. The petitioner testified she met the decedent’s father in Baltimore, Maryland and became pregnant with the decedent. She returned to New York, where the decedent was born, whereas the father remained in Baltimore and he agreed he would support the decedent. The father was present for the decedent’s birth and appears on the decedent’s birth certificate as such. As per the petitioner, he did not revisit the decedent until he was three or four years old. She further testified the father did not see the decedent until he married his current spouse, when the decedent was approximately seven years old. At that visit he partially paid for sneakers for the decedent. The father came to New York to pick up the decedent, when he was approximately nine years old, and took him back to Baltimore for approximately one week, after which, the father drove him back to New York. Thereafter, the father did not see the decedent in New York until he was hospitalized. The petitioner’s testimony was that the father only saw the decedent 3 or 4 times prior to his demise and his only support was a coat, $100, some clothing, sharing the cost for a pair of sneakers and a video game that the decedent returned with from the Baltimore trip. On cross examination the petitioner acknowledged that the father assisted in paying for the decedent’s funeral after the petitioner made the request for assistance and he did so voluntarily. The brief testimony of the petitioner’s mother, the decedent’s older half-sister and cousin mirrored that of the petitioner, in essence, the father visited the decedent two or three times and did not support the decedent. Not surprisingly, the testimony of the father greatly contradicted that of the petitioner. The father testified that he attended the birth of the decedent and bought him “diapers and everything that he needed” after his birth. He came to visit the decedent frequently with his cousin Tony, whose girlfriend was a friend to the petitioner. He further testified that he provided cash and money orders to the petitioner for Michael’s support, and acknowledged he did not have copies of the same insofar they were given many years ago. Moreover, he had many long distance telephone conversations with the decedent concerning his education, Boy Scout membership, karate classes and his other interests, including art, rapping and poetry. When asked about his response to the decedent’s accident, he testified his parents were in from Nigeria, and upon learning of the incident, he, his parents and his current spouse rushed to New York to see the decedent in the hospital. The father continued that he visited the decedent in the hospital and rehabilitation facility on four occasions. Further, he testified that he was informed of the decedent’s death not by the petitioner but by a friend. Finally, when asked if he spoke at the decedent’s funeral, his reply was: “Of course as a father, right I welcomed people that came, and you know, that’s what a father’s supposed to do. It’s not a happy event, but we got to deal with it.” On cross-examination, the father testified that he did not have receipts for any of the hotel stays as the same occurred over 13 years prior. Further, over a five-year period he estimated he provided over $15,000 in cash and money orders that were mailed to the petitioner at her request because they were easier to cash, and he did not have receipts for the same. When pressed, the father indicated he had taken photos with the decedent, but he did not have them in his wallet, did not present them in court and were not transferred to his current cell phone. The father’s spouse’s testimony was incredible, and served to clearly bolster that of the father. She testified that she spoke to the decedent and when they visited him in the Bronx, they would go shopping. Moreover, they visited the decedent with their eldest daughter and the father sent money to the petitioner and the decedent. On cross examination, she testified she and the father visited the decedent every month from the time of their marriage in 1997 through the decedent’s accident in 2002 and stayed at various hotels when they came to visit — a total of 60 visits — yet she could not recall the name of a single hotel. Finally, the father’s eldest daughter, the decedent’s half-sister testified that there was a nine year difference between her and the decedent; she spoke to him over the phone and recalls his visit to Baltimore and she visited the decedent twice in the hospital. On cross examination she indicated her parents would make monthly trips to see the decedent prior to his accident. Pursuant to EPTL 4-1.4 (a) (1), a parent may be disqualified from sharing in the estate of a deceased child where the parent, while the child was under the age of 21, either failed or refused to support the child or abandoned the child (see EPTL 4-1.4 [a] [1]; Matter of Wigfall, 20 Misc 3d 648, 651 [Sur Ct, Westchester County 2008]; Matter of Emiro, 5 Misc 3d 1002 [A], 2004 NY Slip Op 51149 [U] [Sur Ct, Westchester County 2004]; Matter of Gonzalez, 196 Misc 2d 984, 987 [Sur Ct, Bronx County 2003]). As the statutory criteria of EPTL 4-1.4 is set forth in the disjunctive, proof of either will result in disqualification of the parent (see Matter of Wigfall, 20 Misc 3d at 651; Matter of Emiro, 5 Misc 3d at 1002 [A] supra). The disqualification extends to sharing in the settlement proceeds allocated to the cause of action for the decedent’s wrongful death (EPTL 5-4.4 [a] [2]; Matter of Emiro, 5 Misc 3d at 1002 [A] supra), and sharing in those proceeds allocated to the cause of action for the decedent’s conscious pain and suffering (see EPTL 4-1.4 [a] [1]; Matter of Pessoni, 11 Misc 3d 245,248-249 [2005]; Matter of Emiro, 5 Misc 3d at 1002 [A] [supra). The obvious intent and purpose of EPTL 4-1.4 is to prevent a parent, who has been no part of the child's life, from showing up to share the spoils of the child's death (see Matter of Pessoni, 11 Misc 3d at 250). The petitioner has the burden of proof on the issue of abandonment and failure to support (see Matter of Wigfall, 20 Misc 3d at 651; Matter of Gonzalez, 196 Misc 2d at 984). Proof of abandonment must amount to a voluntary breach or neglect of the duty to care for and train a child and of the duty to supervise and guide the child's growth and development (see Matter of Wigfall, 20 Misc 3d at 652; Matter of Pessoni, 11 Misc 3d at 247). "A father's alleged long-distance love and his occasional visits with the decedent do not constitute the 'natural and legal obligations of training, care and guidance owed by a parent to a child.'" (Matter of Gonzalez 196 Misc 2d at 987 [Sur Ct, Bronx County 2003]. At the outset the court notes that there is no basis to doubt the father’s professed love for the decedent as his first born child. The petitioner and her witnesses would have this court find that the father was completely absent in the decedent’s life. On the other hand, the testimony of the father and his Maryland family paints an entirely different picture, one of a highly involved parent who juggled between his family in Baltimore and his son in the Bronx. To sustain the father’s objections would require the court to accept the testimony of the father, as well as his spouse and daughter in toto. It would also require a finding that the father continuously fulfilled his obligations of training, care and guidance owed to the decedent (see Matter of Arroyo, 273 AD2d 820 [Fourth Dept 2000]), which belies the evidence before the court. The truth lies somewhere between the two portraits painted by the parties, and this inevitable truth compels the court to determine the father abandoned the decedent, as a matter of law. Accordingly, the court finds that the petitioner has established by clear and convincing evidence that decedent’s father abandoned and failed to support the decedent and, consequently, he is not entitled to a distributive share of the decedent’s estate (see EPTL 4-1.1 [a] [1]), warranting a dismissal of the objections. Under the circumstances presented, including the consent of the New York State Department of Taxation and Finance, the lack of any debts not accounted for herein, the request to allocate the entire net settlement proceeds to the wrongful death cause of action is granted. Counsel fees are allowed in accord with the retainer agreement. Disbursements are allowed in the sum of $1,702.45. The sum of $5,000 shall be paid to the New York City Human Resources Administration, as stipulated. The net distributable proceeds are to be paid to the decedent’s mother. Settle Decree.
