2023 New York Laws › EPT - Estates, Powers and Trusts › Article 5 - Family Rights › Part 4 - Rights of Members of Family Resulting From Wrongful Act, Neglect or Default Causing Death of Decedent › 5-4.6 - Application to Compromise Action

§ 5-4.6 Application to compromise action
(a) Within sixty days of the application of an administrator appointed
under 5-4.1 or a personal representative to the court in which an action
for  wrongful act, neglect or default causing the death of a decedent is
pending, the court shall, after inquiry into the merits  of  the  action
and the amount of damages proposed as a compromise either disapprove the
application  or  approve  in  writing a compromise for such amount as it
shall determine to be adequate including approval of attorneys fees  and
other payable expenses as set forth below, and shall order the defendant
to  pay  all sums payable under the order of compromise, within the time
frames set forth in section five thousand three-a of the civil  practice
law  and  rules,  to  the  attorney  for  the  administrator or personal
representative for placement in an interest bearing escrow  account  for
the  benefit  of  the distributees. The order shall also provide for the
following:
(1) Upon collection  of  the  settlement  funds  and  creation  of  an
interest  bearing  escrow account, the attorney for the administrator or
personal representative shall pay from the account all due  and  payable
expenses,  excluding  attorneys  fees,  approved  by  the court, such as
medical bills, funeral costs and other liens on the estate.
(2) All attorneys fees approved by the court for  the  prosecution  of
the  action  for  wrongful  act,  neglect  or  default, inclusive of all
disbursements, shall be immediately payable from the escrow account upon
submission to the  trial  court  proof  of  filing  of  a  petition  for
allocation  and  distribution  in the surrogate's court on behalf of the
decedent's estate.
(3) The attorney for the administrator or personal  representative  in
the  action  for  wrongful  act, neglect or default who receives payment
under this section shall continue to serve as attorney  for  the  estate
until the entry of a final decree in the surrogate's court.
(b)  If  any of the distributees is an infant, incompetent, person who
is incarcerated or person under disability, the  court  shall  determine
whether a guardian ad litem is required before any payments are made, in
which case the court will seek an immediate appointment of a guardian ad
litem  by the surrogate's court or, if the surrogate's court defers, the
court shall make such  appointment.  Any  guardian  appointed  for  this
purpose  shall continue to serve as the guardian ad litem for the person
requiring same for all other purposes.
(c) The filing fee in the surrogate's court shall be computed based on
the amount of the gross estate prior to any  payments  made  under  this
paragraph.
(d) The written approval by such court of the compromise is conclusive
evidence  of  the  adequacy  of  the compromise in any proceeding in the
surrogate's court for the  final  settlement  of  the  account  of  such
administrator or personal representative.
(e)  Nothing  in this section shall be deemed to preclude the attorney
for the administrator or personal representative  from  petitioning  the
surrogate's  court  for  approval of a compromise and for allocation and
distribution thereof.
(f) No letters of administration shall be issued which will in any way
serve to abrogate the rights  or  obligations  of  an  administrator  or
personal  representative or an attorney representing an administrator or
personal representative under this section.
(g) In the case of a recovery of an award from the September  eleventh
victim  compensation  fund  of  two thousand one established pursuant to
title  IV  of  the  federal  air  transportation   safety   and   system
stabilization  act,  public  law  107-42,  as  amended,  where the award
consists solely of non-economic losses  (funeral  expense  reimbursement

being  included as non-economic losses herein) a personal representative
may file a consent to the  adequacy  of  the  award  by  all  interested
parties in lieu of a compromise proceeding.