Form WD-2 - Wrongful death petition
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 To date, said letters have not been revoked and are presently in full force and effect.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)