Papers considered: 1) Petitioner’s Notice of Motion for Summary Judgment dated January 27, 2021; Affirmation in Support dated January 27, 2021, with exhibits; 2) Respondent’s Affirmation in Opposition to Motion for Summary Judgment dated February 9, 2021, with exhibits; Memorandum of Law dated November 1, 2019; 3) Report and Recommendation of Guardian ad Litem Shevy, filed February 10, 2021; 4) Report and Recommendation of Guardian ad Litem Gottheim, filed February 11, 2021; 5) Petitioner’s Reply Affirmation in Support of Motion for Summary Judgment dated February 16, 2021. DECISION AND ORDER Decedent died intestate a resident of Albany County on January 14, 2013 at the age of 53 years. He was survived by his wife, petitioner Clathina McMillan-Hoyte, and six children, five of whom were then under age 21. Letters of limited administration were issued to petitioner on July 30, 2014. Petitioner commenced this proceeding pursuant to EPTL 5-4.6 for distribution of settlement proceeds which, by order of Supreme Court, Albany County (Hartman, J.) dated June 11, 2020, were already allocated 100 percent to wrongful death. Respondent Albany County Department of Social Services (hereinafter DSS) appeared in this proceeding and objected, arguing that there should be an allocation to decedent’s personal injury which would be payable to the estate and subject to its claim for a $72,129.60 Medicaid lien. No objections to the relief requested in the petition were filed by any of the other interested parties. Petitioner now moves for summary judgment dismissing the objections of DSS. The guardians ad litem appointed on behalf of the infants have appeared, do not object, and support petitioner’s motion to dismiss the claim of DSS. Surrogate’s Court has concurrent jurisdiction with Supreme Court over all matters relating to decedents and their estates, including compromise and distribution of proceeds of a decedent’s personal injury and wrongful death actions (see NY Const art VI, §7, 12; SCPA 201; EPTL 5-4.4 [a] [1]). In this case, Supreme Court issued an order of adequacy pursuant to EPTL 5-4.6 (a) approving the settlement of actions brought in Supreme Court and United States District Court, Northern District of New York, against various defendants. Supreme Court’s order specifically provided that “the entirety of the settlement be attributed to wrongful death damages due to the fact that the decedent experienced the alleged fatal pulmonary embolism at issue during surgery, while he was unconscious, and never regained consciousness thereafter.” Supreme Court’s order did not determine the amounts payable to decedent’s distributees, instead directing commencement of this proceeding “in the Albany County Surrogate’s Court for allocation and distribution of the net proceeds of the settlement.” DSS argues that Supreme Court does not have jurisdiction to determine the wrongful death allocation of the portion of the combined settlement of the action which occurred in Federal court, but argues that Surrogate’s Court does have jurisdiction, notwithstanding Supreme Court’s grant of general original jurisdiction by NY Constitution art VI, §7. DSS further contends that Supreme Court did not properly consider the facts in making its allocation. On the contrary, petitioner argues that Supreme Court did have jurisdiction to determine the allocation to wrongful death and did so on the clear facts of the case. Petitioner also points out that, although the underlying action against the state and federal defendants was for both personal injury and wrongful death, petitioner was unable to uncover any facts to support the personal injury claim. It is well settled that “the Supreme Court is competent to entertain all causes and to conduct all subsidiary proceedings necessary to determining those causes…including any and all proceedings occurring in the course of a statutorily prescribed wrongful death action” (Pollicina v. Misericordia Hosp. Med. Ctr., 82 NY2d 332, 338 [1993]). Furthermore, “[a]lthough the Surrogate’s Court is the primary forum for proceedings involving estates and intestacies, the Supreme Court’s inviolate authority to hear and resolve all causes in law and equity unquestionably extends to such matters as well” (Pollicina, 82 NY2d at 339). Supreme Court has fully determined the question of allocation between personal injury and wrongful death in the underlying action against all defendants, including the Federal court defendants. It is therefore clear that this Court does not have jurisdiction to modify the order issued by Supreme Court, and any change to the 100 percent allocation to wrongful death would have had to be sought by motion to Supreme Court (see Matter of Torres, 28 Misc 3d 677 [Sur Ct, Bronx County 2010]; Matter of Swimy, NYLJ, Jul. 25, 2016 at 19, col. 1, 2016 NYLJ LEXIS 2289 [Sur Ct, Bronx County 2016]). The issue of jurisdiction was discussed at a scheduling conference in this proceeding on November 18, 2020, and the matter was adjourned to allow DSS to move for relief in Supreme Court. DSS did not move in Supreme Court or take any action other than to respond to this motion, still contending that this Court has jurisdiction to change the wrongful death allocation made by Supreme Court. A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212 [b]). There are no questions of fact raised by DSS which have not already been determined by Supreme Court. Recoveries allocated to wrongful death are distributable in accordance with EPTL 5-4.4 to a decedent’s distributees in proportion to the pecuniary injuries suffered by them and are not subject to a decedent’s creditors. The allocation of the settlement by Supreme Court entirely to wrongful death precludes DSS as a creditor from any entitlement to share in the distribution to be made in this proceeding by this Court among decedent’s distributees. DSS had sufficient time before this motion was made to move in Supreme Court for reconsideration, and it did not do so. Even if DSS had availed itself of the opportunity to move for reconsideration in Supreme Court, it is noted that the facts of the underlying action in this matter support Supreme Court’s determination that the entire settlement be allocated to wrongful death. The objections of DSS are dismissed. This constitutes the decision and order of the Court. Dated: April 7, 2021
