DECISION n this petition to compromise a cause of action for decedent’s conscious pain and suffering, decedent’s son and limited administrator, James Marible, Jr., seeks a decree authorizing him to settle the cause of action for $60,000.00, approving the fees and disbursements of his attorneys, approving the payment of $10,000.00 to the New York City Human Resources Administration (NYC-HRA), for its lien, and approving the payment of $10,000.00 to LawCash in full satisfaction of its lien. The petition also seeks to disqualify decedent’s husband, Robert Lee Knight, as a distributee on the grounds of abandonment, pursuant to EPTL 5-1.2 which continued until the time of decedent’s death. The court appointed a guardian ad litem (“GAL”) (SCPA 403) to represent the interest of Mr. Knight, whose whereabouts are unknown. Barbara Knight died intestate on November 13, 2014, from causes unrelated to the action she commenced against seven named defendants in Supreme Court, New York County, for injuries she sustained on August 4, 2008, when she fell on the sidewalk and severely injured her arm and ankle. At a pre-trial conference, four of the seven defendants offered to settle this case for $60,000.00, and it was agreed that the action against the remaining three defendants would be discontinued. Before the settlement was approved and the proceeds received, however, decedent passed away. The court issued limited Letters of Administration to petitioner with standard EPTL 5-4.6 restrictions. A party seeking disqualification on the ground of abandonment has the burden of proving that the spouse unjustifiably left decedent without her consent and continued to live separate and apart from her (Matter of Maiden, 284 NY 429 [1940]; citing Matter of Rechtschaffen, 278 NY 336 [1938]; see Matter of Lapenna, 16 AD2d 655, 656 [2d Dept 1962]). The record before the court includes the affidavit of decedent’s longtime companion of over 30 years, affidavits of Petitioner’s counsel detailing the efforts by his firm to locate Mr. Knight without success, as well as the affidavit of decedent’s sister. Also in the court file is the report of the guardian ad litem appointed by the court to protect Mr. Knight’s interests. After reviewing the above affidavits and conducting her own independent search for her ward, without success, the GAL opines in her report that sufficient grounds exist for a finding of abandonment by Mr. Knight of the decedent. On the record as a whole, the court agrees with the GAL’s conclusion. Accordingly, the court holds that Mr. Knight is disqualified as decedent’s surviving spouse under EPTL 5-1.2 because he abandoned decedent and such abandonment continued until the time of her death. The petition is granted. The restrictions in the Letters of Administration issued to petitioner on October 18, 2017, are hereby removed. The administrator is authorized to execute any instrument necessary to effectuate settlement and collect the settlement proceeds. The legal fee and disbursements of petitioner’s counsel are fixed and determined. The administrator is further authorized to pay the sum of $10,000.00 to the New York City Human Resources Administration (NYC-HRA) in satisfaction of its lien and to pay the sum of $10,000.00 to LawCash in satisfaction of its lien. Statutory commissions (SCPA 2307) and reimbursement for decedent’s funeral expenses are waived. The net proceeds shall be paid to Mr. Marible in his capacity as decedent’s sole distributee (EPTL 4-1.1[a][3]). Settle decree with a provision for fixing the compensation of the guardian ad litem. Date: October 16, 2020
