New York Codes, Rules and Regulations › Title 22 - JUDICIARY › Subtitle D - Forms › Chapter VII - Surrogate's Court Forms › Subchapter A - Forms Authorized By Section 207.52 › Surrogate's Forms › Form WD-2 - Wrongful death petition

Current through Register Vol. 46, No. 28, July
					 10, 2024
SURROGATE'S COURT OF THE STATE OF NEW
						YORK
COUNTY OF
________X
In the Matter of the Application of
						________, as
Administrat________ of the Goods, Chattels
						and PETITION
Credits which were of ________,
File No. ________
deceased,
For leave to compromise a certain cause of
						action for wrongful death of the decedent and to render and have judicially
						settled an account of the proceedings as such
Administrator.
________X
TO THE SURROGATE'S COURT:
It is respectfully alleged:
E PTL 5-4.1
E PTL 5-4.6
SCPA 2204
Uniform Rules
Sec.
						207.38
1. Petitioner ________ is the ________ of
						the above-named decedent and presently resides at ________.
2. The decedent died a resident of
						________, County of ________, New York on ________; and had resided there with
						________
SCPA
Article 17
3. On ________, Letters of Guardianship of
						the person and property of ________, infant son/daughter of the decedent (copy
						attached), were issued to your petitioner by the Surrogate's Court, ________
						County.
SCPA 702
4. On ________, Limited Letters of
						Administration of the Goods, Chattels and Credits which were of ________,
						deceased, were issued to petitioner by the Surrogate's Court of ________
						County, which letters were of limited authority and restrained your petitioner
						from compromising or collecting upon said claim for wrongful death until
						further order of this court. To date, said letters have not been revoked and
						are presently in full force and effect. No bond was required of your
						administrator to cover any probable amount to be realized from said
						action.
5. The decedent at the time of death was
						employed as a ____________
by ________ at ________, earning
						approximately $________ per week.
6. The decedent at the time of death was
						________ years of age, having been born on ________.
7. The injuries that resulted in the
						decedent's death were sustained on [give date, time] ________ at [location]
						________ [Describe fatal incident]
WD-2 (4/98)
8. The decedent was taken to ____________
						Hospital where he/she died on
________ at or about ________ a.m./p.m. of
						that day without having regained consciousness. [Describe circumstances, e.g.,
						length of hospitalization, etc., resulting in death] Decedent did not regain
						consciousness, and all of the proceeds of the settlement of the action are to
						be allocated for wrongful death and not for conscious pain and
						suffering.
9. A combined action for decedent's
						wrongful death and conscious pain and suffering was commenced against the
						defendant ________. [Include references to court where action commenced,
						pleadings, etc.] Thereafter, negotiations were entered into with the
						representative of ________ Insurance Company, and a final offer has been made
						to settle this claim for the sum of $________ out of maximum insurance coverage
						of $________
10. An investigation of the personal
						resources of the defendant, ________, has been undertaken and it has been
						discovered that [provide details as to assets].
11. Petitioner believes that it is in the
						best interests of the distributees and the estate of the decedent and those
						interested therein to accept the settlement so offered and that this is the
						largest amount that can be obtained without further litigation.
12. The grounds of petitioner's belief are
						[indicate reasons why acceptance of the settlement is advisable]
See SCPA
Art. 17
Art. 4
D.R.L.
Sec. 32
13. The decedent at the time of death was
						married and left the following survivors:
Name Relationship Date of Birth Present
						Age
____________
____________
____________
____________
14. On ____________, petitioner retained
						____________, Esq.
of ________, as his/her attorney (a copy
						of the retainer agreement and affidavit of legal services are attached). In
						view of the results achieved, petitioner would request the court to approve a
						fee as follows: That the attorney's disbursements in the sum of $________ first
						be deducted from the gross settlement of ________; that of the balance of
						$________ a fee of ________% or $ ________ be allowed, which together with
						disbursements of $________ would amount to total compensation of
						$________.
E PTL 5-4.4;
Matter of Kaiser,
198 Misc. 582
15. Petitioner has been advised that the
						proceeds of an action for wrongful death are allocated according to the
						pecuniary loss sustained by the widow/widower and infants. Petitioner has
						further been advised that the share of the petitioner and the children are
						computed in accordance with the years of dependency each of the survivors could
						look forward to but for the decedent's death. At the time of death, decedent
						was ________ years of age, having been born on ________ and having died on
						________ and had a life expectancy of ________ years, based on the table of
						vital statistics, United States Health Department - copy attached. As
						petitioner as husband/wife and widower/widow was born on ________ and had a
						life expectancy of ________ years, the life expectancy of the decedent must be
						used. Therefore, the years of dependency are as follows:
WD-2 (4/98)
Anticipated Percentage of
Age on Date Years of Net Amount of
Name of Death Dependency Settlement
See
D.R.L. Sec.
32
____________
____________
____________
____________
NOTE: WHERE RECOVERY OR PART THEREOF IS
						ALLOCATED TO CONSCIOUS PAIN AND SUFFERING, THE PROCEEDS PASS THROUGH THE
						DECEDENT'S ESTATE EITHER IN ACCORDANCE WITH THE PROVISIONS OF HIS/HER WILL, OR
						IN THE EVENT OF INTESTACY, IN ACCORDANCE WITH E PTL 4-1.1.
16. All of the above persons are of sound
						mind and full age (except for the infant ________) and are citizens of the
						United States.
17. Petitioner as administrator hereby
						waives any claim for statutory commissions and waives the filing of a surety
						bond.
18. Decedent's funeral bill in the sum of
						$ ________ has been paid by ________. Annexed hereto is the paid bill. No
						reimbursement is sought. There are no medical bills or hospital bills
						outstanding, and there are no assignments, compensation claims or liens filed
						with petitioner as administrator except for the following:
a) The Commissioner of Social Services has
						submitted a claim of $________ for public assistance rendered to decedent and
						his/her family for the years ________. This claim is rejected since the
						Department would have a lien only against a recovery for conscious pain and
						suffering, which would be an estate asset, and here there is to be no recovery
						for conscious pain and suffering.
b) ____________ has submitted a claim for
						________ based on an
________. This claim is also rejected for
						the same reasons as the rejection of the claim of the Department of Social
						Services.
[List other creditors, if any]
c) Decedent's father/mother, ________,
						seeks a share of the recovery by claiming the suffering of a pecuniary loss by
						virtue of decedent's death. This claim is rejected on the grounds that in spite
						of any possible demonstrated pecuniary injury, decedent's father/mother is
						nevertheless a nondistributee and thus ineligible to share in the
						recovery.
19. [If applicable] During the years
						________ through ________, the decedent was the recipient of public assistance
						in the form of Aid to Dependent Children.
20. No previous application has been made
						for the relief sought herein.
21. Petitioner desires leave of this court
						to compromise and settle with ________ Insurance Company the claim against
						________ for the wrongful death of the decedent, to discontinue the action for
						conscious pain and suffering and to fix reasonable attorney's fees and to pay
						the distributees their share of the settlement pursuant to the provisions of
						law (and to settle the account of the Administrator).
WD-2 (4/98)
22. The only persons interested in this
						proceeding entitled to notice thereof are the following:
Name Relationship Address
Husband-Administrator
Wife-Administrator
Daughter
Son
Father
Mother
Alleged Creditor
Name Relationship Address
New York City Possible Creditor
Department of
Social Services
New York State Possible Creditor
Tax Commission
Defendant
Insurance Defendant's
Company Insurance Company
None of the above are under a disability
						except ________, an infant under the age of fourteen years.
23. Petitioner has not become interested
						in the within matter at the instance of the defendant or anyone acting on
						defendant's behalf, directly or indirectly.
WHEREFORE your petitioner prays that a
						Citation herein be directed to the following:
Name Address
____________
____________
____________
[List names of distributees and, if
						applicable, New York City Department of Social Services, New York State Tax
						Commission, Defendant, and Defendant's Insurance Company.]
requiring them to show cause as follows:
						[include as applicable]
WHY the administrator should not be
						authorized and empowered to compromise and settle a certain ________ claim for
						the wrongful death of the decedent, against ________ for the sum of $________
						to discontinue the action for conscious pain and suffering, and
WHY the entire recovery of $________
						should not be allocated to the cause of action for decedent's wrongful death,
						and
WHY the provisions in the Letters of
						Administration heretofore issued to your petitioner on ________ restraining the
						administrator from compromising or collecting upon the aforesaid claim should
						not be modified to permit said compromise, and
WHY the filing of a bond should not be
						dispensed with, and
WD-2 (4/98)
WHY the account of ________, as
						Administrator in this proceeding, should not be judicially settled, and
WHY defendant, ________ or defendant's
						insurance company should not pay to the firm of ________, Esqs., out of the
						proceeds of the settlement for the claim of wrongful death, the sum of
						$________ as and for attorneys' fees, together with disbursements of $________,
						and
WHY, the balance of the settlement, to wit
						the sum of $ ________, should not be distributed to those distributees having
						sustained a pecuniary loss as follows: ________% of the balance to ________,
						widow/widower of the decedent; ________% of the balance to ________, child of
						decedent; ________% of the balance to ________, child of the decedent,
						and
WHY the claim of the Department of Social
						Services in the amount of $________ should not be rejected, and
WHY the claim of ________ should not be
						rejected as a nondistributee, and
WHY the claim of ________ in the amount of
						$ ________ should not be rejected, and
WHY upon payments as hereinbefore
						mentioned by the said defendant, ________, or defendant's insurance company,
						the ________ Insurance Company, the petitioner, as administrator of the goods,
						chattels and credits that were of ________, deceased, should not execute and
						deliver to the said defendant, ________, or defendant's Insurance Company a
						full, final and complete release in the claim against them arising out of the
						aforesaid cause of action together with any other papers necessary to
						effectuate said compromise.
Dated: ________
______________
Petitioner
STATE OF NEW YORK
COUNTY OF
________ being duly sworn, deposes and
						says, that he/she is the petitioner in the within action, that he/she has read
						the foregoing petition and knows the contents thereof that the same is true of
						his/her own knowledge, except as to those matters therein stated to be alleged
						upon information and belief, and as to those matters he/she believes them to be
						true.
________
Sworn to before me this________
________ day of ________,
						19________
______________
Notary Public
SIGNATURE OF ATTORNEY: ____________
PRINT NAME: ____________
FIRM NAME: ____________
ADDRESS OF ATTORNEY: ____________
TELEPHONE NUMBER: ____________
WD-2 (4/98)