Patrick Toner Sets Precedent Enforcing Closing Papers Requirements

February 19, 2019

Senior Associate, Patrick Toner, obtains Supreme Court determination, requiring plaintiff to file a petition in Surrogate Court for approval of the settlement of a wrongful death claim.  The decision revives a legal concept set forth in Bell v. Jolly, 173 Misc. 2d 273 [1997].

In December, 2017, the parties reached a settlement of a negligence and wrongful death claim.  Following settlement, Bartlett LLP, as counsel for defendant, requested signed general releases of all distributees, among other items, prior to disbursement of settlement proceeds.  Notably, plaintiff’s counsel had not provided defendant’s counsel with general releases signed by all distributees, one of whom died in the interim. 

Plaintiff’s counsel claimed that, as the Administratrix maintained “Unlimited” Letters of Administration, she was empowered to settle all claims on behalf of the estate and the distributees. 

In November, 2018, plaintiff’s counsel, without prior Surrogate Court approval, submitted a proposed judgment to Supreme Court, seeking an order distributing the settlement proceeds, along with interest accumulated since the date of settlement, costs and disbursements.

Pursuant to EPTL5-4.6, and Bell v. Jolly, 173 Misc. 2d 273 [1997], defendant opposed the judgment and submitted a counter-judgment requesting that plaintiff’s counsel provide signed general releases of all distributees, or obtain Surrogate Court approval of the settlement, via a Wrongful Death Compromise Order, in order to permit distribution and allocation of settlement funds and attorney’s fees. On February 6, 2019, the Supreme Court, Queens County declined to sign plaintiff’s proposed judgment.  Instead, in accordance with defense counsel’s legal arguments, the Court directed the plaintiff to file a petition with the Surrogate Court, seeking a Wrongful Death Compromise Order, pursuant to EPTL 5-4.6, and citing Bell v. Jolly, in support of the court’s determination.