Decision & Orders signed: July 24 & 25, 2023 Surrogate Gingold
ESTATE OF JOHN HART a/k/a JOHN ALBERT HART, Deceased (15-3398/B/C/D) — The administrator DBN’s application for leave to compromise a cause of action for decedent’s conscious pain and suffering and wrongful death is denied without prejudice to renew upon filing of proper papers. Counsel for administrator DBN initially petitioned for leave to compromise the cause of action on December 23, 2022. The petition had an incorrect and unclear list of disbursements, an incorrect decree, and was missing either a waiver and consent from the post-deceased administrator’s fiduciary regarding administrator’s commissions, or an agreement signed by the fiduciary splitting the administrator’s commissions with administrator DBN. Counsel for administrator DBN submitted the proposed decree on March 27, 2023. The court contacted administrator DBN’s counsel on May 3, 2023 and May 10, 2023 as a courtesy, stating that the application was incorrect and incomplete, and requesting he amend the application. Counsel did not submit the amended application until June 15, 2023. The disbursements were still incorrect, and the waiver and consent signed by the post-deceased administrator’s fiduciary stated that the fiduciary was the administrator’s executor, even though the attached copy of letters testamentary stated the fiduciary was the post-deceased administrator’s administrator. The court contacted counsel again on June 27, 2023 and requested he amend the application. On June 29, 2023, counsel submitted an amended application. Instead of a new waiver and consent signed by the post-deceased administrator’s fiduciary, counsel submitted an affirmation signed by counsel amending the old incorrect waiver and consent. The application also amended the disbursements, but requested attorneys fees be calculated before disbursements were subtracted, contradicting the retainer agreement provided by counsel, yet the amended application did not provide a waiver and consent from distributee allowing for additional fees. The court scheduled a hearing for Monday, July 24, 2023. Counsel advised the court that he would not be attending the hearing, and he would send another attorney from his firm. Upon reflection and based on the foregoing history, the court determined that a hearing would not be productive, and adjourned the hearing in favor of issuing this decision. The administrator DBN’s application is still incorrect and incomplete, even after multiple discussions with counsel and amendments to the petition. Each time the application was amended, the amendment was still not in line with what needed to be done. For these reasons, the application for leave to compromise a cause of action for decedent’s conscious pain and suffering and wrongful death is denied without prejudice to renew upon filing of proper papers, which shall include a detailed affirmation as to why this application was amended multiple times and is still incorrect and incomplete. The Clerk of the Court is directed to email a copy of this decision of the Court to counsel as listed below. Dated: July 24, 2023
