New York State Court of Claims

New York State Court of Claims

TURPIN v. THE STATE OF NEW YORK, #2002-001-017, Claim No. 84753


Synopsis


In light of all these circumstances, the Court is of the view that infant claimant's long-term best interests are best served by preserving his award for its intended use. Accordingly, the Court denies the petition to amend the Infant Compromise Order; and returns the Amended Order unsigned.

Case Information

UID:
2002-001-017
Claimant(s):
NELSON TURPIN, an infant by mother and natural guardian, KENYATTA GREGORY
Claimant short name:
TURPIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
84753
Motion number(s):

Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Andrew Rosner, Esq.
Defendant's attorney:

Third-party defendant's attorney:

Signature date:
March 6, 2002
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 an Infant Compromise Order executed in favor of claimant Nelson Turpin: Compromise Order, dated February 26 and filed March 11, 1999, with annexed supporting documents; [proposed] Amended Compromise Order; Affidavit of Kenyatta Gregory, sworn to December 7 and received December 14, 2001, with annexed bank account history of Nelson Turpin's account; Letter of David Shumer, Esq., dated February 6 and received February 11, 2002; copy of Judicial Hearing Officer's decision for Kenyatta Gregory's Section Eight Housing Benefits Hearing, dated November 7, 2001; copy of Social Security Administration letter stating Kenyatta Gregory's supplemental security income, dated November 8, 2001; Certified Letter of Town of Brookhaven Department of Housing, dated November 8, 2001; copy of Kenyatta Gregory's 30-day rental termination notice, dated November 19, 2001; copy of non-payment warrant, executed December 13, 2001; County of Suffolk Sheriff's Department Notice of Eviction, dated December 31, 2001; and copies of newspaper apartment rental ads.

The infant claimant Nelson Turpin ("infant claimant") is the beneficiary of a Compromise Order that provided for the deposit of a net settlement sum of $105,000 into a joint bank account in the names of his mother, Kenyatta Gregory ("petitioner"), and a duly qualified bank officer. These proceeds, which are to be held for infant claimant's sole use and benefit, resulted from the settlement of a medical malpractice claim prosecuted against the State of New York on his behalf (Compromise Order, dated February 26 and filed March 11, 1999, with annexed supporting documents, Read, P.J.). Petitioner now requests the Court to amend the original Infant Compromise Order to allow her to withdraw "up to $1,500 each month to pay for housing and living expenses of the infant" ([proposed] Amended Compromise Order, p. 3).

Petitioner explains that she has two other young children in addition to infant claimant and receives no child support from their fathers because infant claimant's father is in prison, and the father of the other children has been deported to Barbados (Affidavit of Kenyatta Gregory, sworn to December 7 and received December 14, 2001, with annexed bank account history of Nelson Turpin's account ["Gregory Aff."], ¶¶ 2-5). She states that she is disabled and presently has an income of only $498 a month from her Supplemental Security Income benefits (Gregory Aff., ¶¶ 6-8).

Until September 2001, petitioner had been receiving a housing subsidy of $1,251 per month through the Federally funded Section Eight program and $222 per month from Social Services (Gregory Aff., ¶ 9).[1] These housing subsidies were terminated after it was determined, during a Section Eight Housing termination hearing, that she had violated certain rules and regulations by having two additional adults (her cousins) residing in her apartment without reporting such a change of household size and/or income as required (see, 24 CFR 982.551; 982.552 [c] [1] [viii]).[2]

Petitioner was subsequently evicted from her apartment and alleges that she may now have to move into a homeless shelter with her children if she is not permitted to withdraw the requested $1,500 a month. This, counsel for claimant explains, would pose a particular hardship for petitioner and her children because she suffers from a seizure disorder and mitral valve prolapse and, additionally, two of her children suffer from chronic asthma (Letter of David Shumer, Esq., dated February 6 and received February 11, 2002).

Generally, "[t]he 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 requested for use in a way that provides for the infant's and 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 an infant's award (see, e.g., Baker v Sterling, supra, at 413 n 3 [Fuchsberg, J., concurring]; Conigliaro v Rosa, 24 Misc 2d 15).[3]

On the other hand, the seemingly inviolable rule of these cases and the oft-cited De Marco v Seaman (157 Misc 390)--that proceeds of an infant settlement are to be preserved absent extraordinary expenses associated with the injury giving rise to the settlement--has been modified to a degree by section 202.67 of the Uniform Rules for the New York State Trial Courts which, upon the proper showing, permits withdrawals from the infant's account for his basic support (see, Matter of Marmol [In re Pineda], supra, at 850; 22 NYCRR 202.67 [g]). Here, the papers supplied by petitioner establish her recent change in financial circumstances, which, she argues, recommends the requested withdrawal.

As the entity ultimately responsible for the safekeeping of infant claimant's funds (see, Caban v Lonkey, supra, citing Gaffney v Constantine, 87 NYS2d 131 [court is guardian of child's fund]), the Court must, after analyzing all the facts presented, conclude that the proposed withdrawal is in infant claimant's best interests. This entails weighing the competing interests of (1) preserving the fund for its intended purpose (see, n 3, supra) and (2) allowing for an invasion of the fund to provide for infant claimant's necessaries (and, incidentally, petitioner's and infant claimant's siblings') because petitioner claims she can no longer do so. Although the benefit to infant claimant of allowing petitioner to invade the account to provide the family with housing is obvious enough, the Court is not persuaded that the requested relief is ultimately in his best interests.

First, the requested relief basically places the onus of petitioner's loss of a Federal housing subsidy--a loss occasioned by her own disregard for the pertinent rules--upon infant claimant, who is presently 10 years of age. Second, the Court has a duty under CPLR article 12 and 22 NYCRR 202.67 to safeguard infant claimant's funds scrupulously (see, Peterson v City of New York, 107 Misc 2d 1055, 1056, citing Matter of Stackpole, 9 Misc 2d 922), which is hardly well-served by allowing significant and open-ended monthly withdrawals, as requested. In fact, the proposed amendment, if granted, would inevitably deplete the award, threatening to leave infant claimant with little or nothing by the time he reached his majority.[4]

In light of all these circumstances, the Court is of the view that infant claimant's long-term best interests are best served by preserving his award for its intended use. Accordingly, the Court denies the petition to amend the Infant Compromise Order; and returns the Amended Order unsigned.


March 6, 2002
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]It appears that the Section Eight housing subsidy may have continued until November 2001 (Certified Letter of Town of Brookhaven Department of Housing, dated November 8, 2001).
[2]There is no indication in petitioner's papers that she ever sought to annul this determination or to reinstate her benefits by way of a CPLR article 78 proceeding (see, e.g., Matter of Brown v Lannert, 272 AD2d 323).
[3]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, 413, n3 [Fuchsberg, J., concurring]).
[4]As of November 2001, the account held $116,136.17 (Gregory Aff., annexed bank account history of Nelson Turpin's account).