In re Dugan

HON. MARGARET C. REILLY

DECISION Dec. No. 31859

PRESENT: HON. MARGARET C. REILLY The following papers were considered in the preparation of this decision:

Petition with Exhibits	1
Attorney Affirmation dated April 4, 2016	2
Affirmation to Amend Petition filed June 3, 2016	3
Order Approving Adequacy and Sealing Settlements	4
Waiver of Citation and Consent of N.Y.S. Department of Taxation andFinance	5
Waivers and Consents	6
Attorney Affirmation filed April 27, 2016	7
Account	8

In this proceeding for leave to settle and compromise an action for conscious pain and suffering, the petitioner, Kathleen Kearney, seeks a decree: (1) authorizing the petitioner to settle the cause of action for conscious pain and suffering for the sum of $50,000.00 from Georgia-Pacific Corporation, $7,000.00 from Ingersoll Rand Company, and $10,000.00 from Union Carbide Corporation, for a total of $67,000.00; (2) allocating the recovery of $67,000.00 entirely to the cause of action for conscious pain and suffering; (3) modifying the letters of administration previously issued to the petitioner to permit this compromise; (4) dispensing with the filing of a bond; (5) judicially settling the account of the administrator; and (6) allocating the proceeds as follows: (a) legal fees of $20,393.10 and disbursements of $5,820.71 to the law office of Belluck & Fox, LLP; and (b) $40,786.20 to the decedent's surviving spouse, Kathleen Kearney, pursuant to EPTL § 4-1.1.

The precise number is actually $40,786.19, but it was rounded up to $40,786.20 throughout the petitioner's papers, and that number will be used throughout this decision. --------

At the time of his death on April 27, 2009, the decedent was a resident of 382 Briarwood Road, North Massapequa, New York. He was survived by his wife, Kathleen Kearney, and two adult children: Kelly Ann Espenkotter, and Thomas Robert Kearney. Limited letters issued to the petitioner on July 23, 2010. The petition states that the decedent was exposed to a variety of products and/or materials containing asbestos during the second half of the 1960's while working for the Parts Department of General Motors Company in Nassau County, New York. The decedent was also exposed to asbestos products while employed as a roofer for Kenvin Corporation on Long Island from 1968-1969, and as a laborer performing home construction and renovation throughout the late 1970's. As a result of this exposure, the decedent allegedly developed lung cancer related to asbestos exposure and died of asbestos-related disease.

216.1 (a) and filed with the Clerk of New York County, and the Clerk deny access to the file and records to anyone without an authorized order to review the same.

The petitioner states that it is in the best interests of the estate of the decedent to accept the settlements offered, and she asks the court to approve the following distribution of the proceeds:

$67,000.00

Legal fees (33 1/3%)

Net Proceeds

$40,786.20

Gross settlement proceeds
Reimbursed expenses	$ 5,820.71
		$20,393.10

The decedent died intestate and he had no other assets. The decedent's funeral expenses of $12,467.00 were paid by his son, Thomas Robert Kearney, who has not sought reimbursement. The petitioner waives her statutory commission. Notice was provided to the New York State Department of Taxation, which filed a waiver of citation and consent. The decedent's two adult children, his only other distributees, have also executed and filed waivers and consents. The petitioner avers that there are no outstanding tax liabilities.

Accordingly, compromise of the proceeding for the total sum of $67,000.00 is approved, of which $50,000.00 will be paid by Georgia-Pacific Corporation, $7,000.00 will be paid by Ingersoll Rand Company, and $10,000.00 will be paid by Union Carbide Corporation. The court approves the allocation of the proceeds entirely to the cause of action for conscious pain and suffering. The surviving spouse is statutorily entitled to the first $50,000.00 of the assets of the estate of her husband who died intestate (EPTL § 4-1.1 [a] [1]). The total of the conscious pain and suffering portion of the recovery of this petition is the sum of $40,786.20, after payment of attorney's fees in the total sum of $20,393.10, plus disbursements in the amount of $5,820.71, all of which are allowed. There are no medical or hospital bills outstanding, and no assignments, compensation claims, social services claims, creditors' claims or liens were filed with the petitioner as administrator. The restrictions on the administrator's letters are lifted, giving her full authority to execute any and all documents necessary to effectuate the settlement on the foregoing terms. The court dispenses with the filing of a bond. Payment shall be made to Kathleen Kearney of the remaining balance of $40,786.20.

Submit decree. Dated: September 6, 2016

Mineola, New York

ENTER:

/s/ _________

HON. MARGARET C. REILLY

Judge of the Surrogate's Court
cc: Belluck & Fox, LLP

546 Fifth Avenue

4th floor

New York, New York 10036