Sunday, February 9, 2014

Order to Show Cause Improper for Wrongful Death Settlement

            In Cutrone v. Tsahalis (21344/13, NYLJ 1202641851331, at 1, Sup., Kings, decided February 03, 2014), the New York Kings County Supreme Court rejected an application by a plaintiff's attorney for a wrongful death settlement as it was improperly submitted.

            The Court's reasons included the following: (1) an Order to Show (and any other special proceeding) is not the proper route to resolve a wrongful death matter pursuant to law - rather, submission of a wrongful death compromise application to the Surrogate's Court is; (2) the respondent was never served with the application (just his insurance company was served); and (3) a wrongful death claim was never pending in the Supreme Court.

            The Court also stated the following in its decision: "[t]he allocation of responsibility between Supreme Court and Surrogate's Court for the approval of settlements of wrongful death claims and the distribution of settlement proceeds is not a matter of legislative accident...[u]nlike CPLR 1207, concerning the settlement of a claim by an infant, judicially declared incompetent, or conservatee, which explicitly provides for a special proceeding for that purpose if no action is pending, the Court is aware of no similar provision for a special proceeding for judicial approval of the settlement of a wrongful death claim.  Whether Supreme Court has inherent power to entertain such a proceeding pursuant to the State Constitution's grant of almost unlimited general jurisdiction...and whether the Surrogate's limit on the authority of a personal represented in the manner illustrated by the Letters Testamentary granted here would preclude such a proceeding...are not questions the Court is prepared to address on this record."

Salvatore R. Marino, Esq.

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