New York State Court of Claims

New York State Court of Claims

ALTEON v. THE STATE OF NEW YORK, #2000-001-081, Claim No. 85474


Synopsis



Case Information

UID:
2000-001-081
Claimant(s):
DANIEL RENEE ALTEON a/k/a DANIEL RENEE WILLIAMS, an infant, by his Mother and Natural Guardian, CLAUDIA WILLIAMS
Claimant short name:
ALTEON
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
85474
Motion number(s):

Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:

Defendant's attorney:

Third-party defendant's attorney:

Signature date:
December 5, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on the petition to release funds from a joint bank account established by a Compromise Order executed in favor of infant claimant Daniel Renee Alteon: Compromise Order, dated August 8 and filed August 22, 1995, Blinder, J.; Stipulation of Settlement and Discontinuance, dated August 8 and filed August 22, 1995; the claim, dated June 1 and filed June 5

6, 1992; Petition of Claudia Williams, dated May 1 and received September 22, 2000;[1] Affidavit of Claudia Williams, dated May 2000 and received September 22, 2000; Affirmation in Support of Ingrid V. Wyllie, Esq., dated May 20 and received September 22, 2000; and Residential Contract of Sale made February 15, 2000.

The infant claimant Daniel Renee Alteon, also known as Daniel Renee Williams ("claimant"), is the beneficiary of a compromise order providing for the deposit of a net settlement sum of $36,900 into a joint bank account in the names of his mother, Claudia Renee Williams, and a duly qualified bank officer, director or manager. These proceeds, which are to be held for claimant's sole use and benefit until he reaches the age of eighteen, resulted from settlement of a medical malpractice action prosecuted against the State of New York on his behalf (Compromise Order, dated August 8 and filed August 22, 1995, Blinder, J.; Stipulation of Settlement and Discontinuance, dated August 8 and filed August 22, 1995; the claim, dated June 1, 1992 and filed June 5, 1992). Claimant's mother now petitions the Court for authorization to withdraw $25,000 from the account to make up the down payment on a house for the family (Petition of Claudia Williams, dated May 1 and received September 22, 2000 ["petition"], ¶ 8; Affidavit of Claudia Williams, dated May 2000 and received September 22, 2000 ["Williams Aff."], ¶¶ 2-4; Affirmation in Support of Ingrid V. Wyllie, Esq., dated May 20 and received September 22, 2000 ["Wyllie Aff."], ¶¶ 3-8).

Claimant's mother explains that she wishes to withdraw the $25,000 from the joint bank account for this purpose because:
[p]resently the infant along with the Petitioner and the Petitioner['s] two other minor children are residing with the Petitioner's mother. The living space has two bedrooms, which the Petitioner shares with her mother, her family and a sibling. The Petitioner is financially unable to provide adequate housing, in the form of a house for the infant and the infant's two minor siblings. It is necessary for the infant to have adequate living space in order to flourish mentally and educationally. The money if granted would be used towards the downpayment of purchasing a home. This home would be owned jointly by the infant and Petitioner (petition, ¶ 9).

Although the requested $25,000 withdrawal would reduce the balance in the joint bank account by over 50% (petition, ¶¶ 9, 11; Williams Aff., ¶ 1), claimant's mother thus considers this reasonable in light of claimant's anticipated joint ownership of the real property (petition, ¶¶ 9, 10) and his improved living conditions (Williams Aff., ¶ 4). Claimant's mother evidently executed a contract offer on a specific parcel of property in the amount of $185,000 prior to petitioning the Court (Wyllie Aff., ¶¶ 3-5; Residential Contract of Sale made February 15, 2000). Discussion

"The moneys held in the infant's name as the proceeds of the negligence action are intended to be kept for him [or her], and should be maintained intact . . . until he [or she] reaches majority. As a ward of the court, a minor is entitled to receive from the court all available and necessary protection in the preservation of the fund" (Leon v Walker, 1 Misc 2d 219, 220). These funds are not community property for the infant's family's use and authorization for withdrawal shall not be granted perfunctorily (see, 22 NYCRR 202.67 [g]; Matter of Marmol [In re Pineda], 168 Misc 2d 845; Caban v Lonkey, 53 Misc 2d 171; Leon v Walker, 1 Misc 2d 219, supra). This is especially so where, as here, the moneys are intended for use in a way that provides for the infant's or his family's ordinary necessaries (see, Marsh v La Marco, 46 AD2d 888, 889, affd sub nom, Baker v Sterling, 39 NY2d 397), which is not the purpose of the infant's award (see, e.g., Baker v Sterling, supra, at 413 n 3 [Fuchsberg, J., concurring]; Conigliaro v Rosa, 24 Misc 2d 15).[2]

Generally, the court supervising an infant's account will authorize a requested withdrawal for (1) "‘unusual circumstances'--those necessitated by the child's disability "(Matter of Marmol [In re Pineda], supra, at 850, quoting 22 NYCRR 202.67 [g]), in which case the parents' ability to pay is irrelevant; or for (2) "necessaries, treatment and education", but only upon clear proof that the parents are too poor to provide them (id.). Specifically, "if the withdrawal is for the infant's necessities, it is critical that there be compliance with § 202.67 [f] [7] and that sufficient facts be submitted to enable the court to determine, without conjecturing, that support of the child is not within the financial means of the parents" (id.). Here, neither circumstance pertains.

The petition makes clear that claimant has suffered no permanent injury as a result of the malpractice except for "a small scar" on his hand (petition, ¶ 11). Thus, the proposed expenditure is in no way related to a special expense necessitated by a disability stemming from his injury. Nor has claimant's mother demonstrated that she is financially unable to provide for the child's "necessaries"--here housing--as she is gainfully employed by a bank with an annual salary of $51,000 (petition, ¶ 8).

While the desire to provide a house as opposed to an apartment for "the infant and the infant's two minor siblings" (petition, ¶ 9) is laudable, the Court's primary concern is to assure that the full balance of claimant's funds will be available to him when he reaches majority (see, e.g., Matter of Farnitano, NYLJ, May 28, 1998, at 31, col 5; Cabin v Lonkey, 53 Misc 2d 171, 172). As has been observed, the court is guardian of the infant's funds and upon reaching majority, the infant "has a right to expect to receive the money awarded to him for his injury with interest and not a bundle of court orders showing that his funds were spent for ordinary necessities of life which others were obligated by law to furnish him" (Caban v Lonkey, supra, at 172, quoting Gaffney v Constantine, Sup., 87 NYS2d 131, 132).

The Court is aware of instances where Surrogates have allowed a guardian/parent to withdraw moneys from an infant's or incapacitated person's account to finance a family house; however, in those instances the withdrawals were made essentially in the form of a short-term loan with assurances for repayment to the infant's or incapacitated person's account; or the incapacitated person received an equity interest in the property; and/or the withdrawal represented a small proportion of the total account (see, e.g., Matter of Wylie, NYLJ, Sept. 7, 1995 at 33, col 1 [$10,000 from an account of $309,340, subject to the filing and recording of a one-year mortgage on the premises for the benefit of the infant at the rate of 5 1/2 % interest per annum]; Estate of Redden, NYLJ, Mar. 6, 1992, at 24, col 3 [$12,766 withdrawn from infant's account of $16,000 for purchase of cooperative apartment; petitioner/grandmother's monthly disability payments of $1,680 to be applied to pay infant back within eight months, infant designated as 20% beneficiary of petitioner's $68,000 pension fund and 15% beneficiary of her life insurance policy with a face value of $100,000 and petitioner executed a note holding herself personally liable to repay the entire advance together with interest at a rate of 6% per annum;]; In re Christopher W., NYLJ, Mar. 26, 1991, at 25, col 3 [father of a 19-year old incapacitated person living with and cared for by his parents authorized to withdraw $85,000 from $573,600 account in order to purchase a larger house for $350,000; incapacitated person takes title to a 25% share of the real estate as a tenant in common]; see also, Matter of Marmol [In re Pineda], 168 Misc 2d 845, 853-854, supra [setting forth seven prerequisites for judicial authorization for purchase of a family house with infant's funds]).[3] It is also noteworthy that in these cases the infant's or incapacitated person's interests were safeguarded by a guardian ad litem, which is not the case here. Further, although vague representations have been made that "[t]his home would be owned jointly by the infant and Petitioner" (petition, ¶ 9; see also, ¶ 10), no concrete measures have been proposed to bring about this result or to assure prompt repayment to the infant's account of the $25,000 sought. In any event, the Court is not persuaded that it is in the infant's best interests to have the bulk of his settlement proceeds tied up in a house where his mother and siblings reside rather than readily available to him for educational or other purposes when he reaches the age of eighteen.

Conclusion

Based upon the foregoing, the Court denies petitioner's request to authorize withdrawal of $25,000 from the joint bank account established by the Compromise Order executed in favor of infant claimant Daniel Renee Alteon.


December 5, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
This is a copy of a petition originally intended to be presented to the Supreme Court of Kings County.
[2]
A "child's recovery is intended to recompense him for the physical handicaps and personal suffering the defendant visited on him and to place him on a more equal footing with persons not injured--whether permanently or otherwise--and is not a resource available for his basic support" (Baker v Sterling, 39 NY2d 397, at 413 n3 [Fuchsberg, J., concurring]).
[3]
"[T]he use of infants' funds for the purchase of a family home will be judicially authorized provided 1) by clear proof the parents show they cannot afford the purchase price or a portion thereof; 2) the house has features beneficial to the child and accommodates his physical limitations; 3) the purchase price is fair; 4) title is vested in the child at least to the proportionate degree of his investment in the house; 5) necessary measures are taken, where needed, to safeguard the investment against the profligacy of the parent; 6) parents offer a quid pro quo; and 7) the funds remaining after the outlay are sufficient to meet the future needs of the infant and where the child is expected to remain incompetent, for the anticipated duration of his life" (Matter of Marmol [In re Pineda], 168 Misc 2d 845, 853-854, supra).