In this miscellaneous proceeding to compromise certain causes of action emanating from decedent's death, decedent's mother and administratrix of her estate ("petitioner") seeks: (i) to disqualify decedent's father ("objectant") from receiving any of the settlement proceeds; (ii) to seal certain court records; and (iii) related relief. Objectant contests his prospective disqualification as a presumptive distributee.

A hearing on the issue of whether objectant should be disqualified from receiving any settlement proceeds as a presumptive distributee was conducted before a Court Attorney / Referee. At the hearing, petitioner testified on her own behalf and called, as witnesses-in-chief, decedent's younger sister, two of decedent's maternal aunts, and

Based upon the credible evidence adduced at the hearing, the court hereby disqualifies objectant as a distributee of decedent, under the applicable provisions of EPTL 4-1.4(a). [*2]Additionally, the court approves of the settlement and allocation of the settlement proceeds, to the extent set forth, infra, but denies the application to seal court records.

Decedent died intestate on May 25, 1998, at age 29, allegedly a victim of medical malpractice. She never married or had children, and her presumptive intestate distributees are petitioner and respondent.

On October 5, 1998, petitioner obtained letters of administration pertaining to decedent's estate. Subsequently, petitioner timely commenced separate actions against the physicians who treated decedent at or around the time of her death, and against a pharmaceutical company which had manufactured a certain prescription drug, which allegedly contributed to decedent's death.

In November 2002, petitioner commenced the instant proceeding to compromise the action solely against the pharmaceutical company.

In or about January 1986, the parties separated. Shortly thereafter, objectant commenced an action for divorce. In October 1986, four months after decedent had reached the age of 18, the parties entered into a stipulation, settling the divorce action ("Stipulation"). The Stipulation obligated objectant to pay child support to petitioner for decedent's benefit, only if decedent was enrolled in school. By this time, decedent was not attending school and was employed. Furthermore, following the divorce, petitioner resided at the marital residence with decedent until her death.

In the interim, subsequent to the divorce, objectant remarried and had a child with his new wife. He remained in Westchester County through the end of 1987, then moved to New Mexico in 1988. In early 1989, he spent at least one month in Florida with decedent's cousin, looking for employment. During several periods between July 1989 and March 1993, he remained in Westchester sporadically, pursuing employment. By September 1996, objectant and his new family moved to New Hampshire, where they have been domiciled ever since.

At the hearing, petitioner and her witnesses-in- chief testified consistently with respect to the parties' marital and family life and, in particular, objectant's relationship with decedent during the marriage. In essence, the foregoing witnesses testified that: (i) objectant rarely spent time with petitioner or his daughters, and he never gave them any money on any occasion; (ii) objectant [*3]constantly abused decedent verbally, and, on numerous specific occasions, he "smacked," "kicked," "punched," and/or "beat" decedent, sometimes to the point of drawing blood, when she failed to respond to him in a timely fashion; (iii) decedent's aunts bought virtually all of decedent's clothes and Christmas gifts during her childhood, and one of them regularly contributed to rent payments petitioner and objectant made during the marriage prior to their full ownership of the family residence; (iv) objectant routinely dispatched petitioner and his daughters to the residence of petitioner's extended family (a/k/a "the house") for family events, daily meals, and shelter; (v) objectant spent "thousands" of dollars on his collection of model trains, while regularly neglecting to purchase any necessities for petitioner or his daughters; and (vi) objectant routinely spent numerous hours at home while he was allegedly employed. Petitioner also testified that she had to work during the marriage to support her daughters, and that objectant was "unemployed" more often than not during the marriage. Petitioner and decedent's sister also testified that objectant never gave them or decedent any emotional support or encouragement, either during the parties' marriage or after the divorce, and that they all lived in constant "fear" of objectant.

Objectant denied all of foregoing allegations at the hearing.

Additionally, petitioner, decedent's sister and decedent's cousin all testified to an event in January 1986 which, in essence, culminated in the parties' separation. On this occasion, petitioner and decedent confronted objectant at the home of objectant's alleged paramour, at which time objectant grabbed decedent and injured her arm. Objectant denied injuring decedent during this event, but his denial was effectively impeached at the hearing.

As to decedent's relationship with objectant subsequent to the divorce, decedent's sister testified that she saw objectant on "five to six" occasions, and, to her knowledge, decedent saw him no more than "four or five" times. Petitioner testified that she did not prevent either decedent or decedent's sister from contacting or meeting with objectant subsequent to the divorce. She also testified that objectant did not contribute any money toward the household subsequent to the parties' separation in early 1986, and that she was forced to obtain public assistance in order to meet her family's expenses.

With respect to decedent's death, both decedent's sister and decedent's cousin, who once considered objectant to be "like a father" to him, testified that they had to contact an obscure relative of objectant to locate him. They further testified that when objectant arrived for the wake and funeral, he showed virtually no remorse or emotion, and, instead, discussed his own personal and financial problems. Also, decedent's sister testified that when objectant arrived at the wake, he looked through decedent's checkbook, and that objectant did not contribute toward any of the funeral expenses or headstone.

Objectant also testified that, subsequent to the parties' divorce, he regularly kept in contact with decedent, including by routine dispatch of greeting cards to her on holidays and birthdays. ^[FN2] In all, objectant testified to approximately six specific encounters with decedent between 1986 and 1993, and that he never saw decedent alive again subsequent to 1993.

With respect to his knowledge of decedent's college education subsequent to the divorce, objectant testified that he first learned of this information at decedent's wake and funeral. He also admitted that he did not pay for any medical or educational expenses on decedent's behalf after 1986.

As to his learning of decedent's death, objectant testified that he and his mother were visiting a friend in Indiana when he was contacted through the efforts of decedent's cousin. He rushed to New York to attend decedent's funeral, and was in "shock" at her death. While he admitted that he did not pay for any funeral expenses, he testified that he regretted not being permitted to "stay in" decedent's life, stating, in essence, that petitioner had strongly discouraged both decedent and decedent's sister from maintaining any contact with him after the parties' divorce.

At the close of her direct case, petitioner moved, in limine, to have the pleadings conform to the proof adduced at the hearing, to ensure that the court would consider disqualifying objectant on the alternate grounds of abandonment and/or failure to support. In response, objectant cross-moved, in limine, to have the court limit its inquiry to whether he abandoned decedent. The court hereby grants petitioner's application and denies the cross application, for the reasons set forth, infra.

Pursuant to CPLR 3025(c), pleadings may be conformed to the proof at any time upon such terms as may be just (see Thailer v LaRocca, 174 AD2d 731). This court may, sua sponte, relieve a petitioner of the failure to amend a pleading by deeming it amended to conform to the evidence presented at a hearing where there is no prejudice to the opposing party (see Matter of Denton, ___ AD2d ___, 774 NYS2d 424 [2d Dept., 2004]; Cave v Kollar, 2 AD3d 386). [*5]

As to the substantive issue at bar, EPTL 4-1.4(a) provides, in pertinent part:

"No distributive share in the estate of a deceased child shall be allowed to a parent who has failed or refused to provide for, or has abandoned such child while such child is under the age of [21], whether or not such child dies before having attained the age of [21], unless the parental relationship and duties are subsequently resumed and continue until the death of the child * * * ."

Objectant's in limine application is based, in principal part, on petitioner's failure to explicitly cite objectant's alleged "failure to support" decedent as a ground for his disqualification under EPTL 4-1.4 either in the petition or the Statement of Issues filed by petitioner with the note of issue (22 NYCRR 207.29, 207.30). The court rejects this argument as one of "form over substance." In doing so, the court has reviewed the petition and supporting papers, which contain ample allegations pertaining to both objectant's alleged failure to support decedent and his alleged abandonment of her, as well as the

Accordingly, the court will address the alternative grounds of failure to support and abandonment in deciding whether to disqualify objectant pursuant to EPTL 4-1.4(a).

As to objectant's alleged failure to support decedent, EPTL 4-1.4(a) imposes the equitable penalty of disinheritance upon a parent who has failed to fulfill his/her statutory obligation under Family Court Act § 413 to provide, based upon his/her means, a fair and reasonable sum for the support of his/her children (Matter of Maracallo, NYLJ, May 12, 1999, at 32, col. 1 [Bronx]). In this respect, a party seeking disqualification needs to show that the parent had the means to [*6]support the child, and failed to do so (Matter of Maracallo, supra). The failure to support the child must be the result of a voluntary or deliberate act of the parent (Matter of Musczak, 196 Misc. 364; Matter of Schriffrin, 152 Misc. 33), or because of a "disinclination" on the parent's part (Matter of Zovnek, 143 Misc. 827). In deciding this issue, a court will distinguish between those parents who are unable

On the instant record, the court finds that objectant failed to provide adequate support for decedent while she was under age 21, and failed to resume this parental duty prior to decedent's death. In doing so, the court fully credits the testimony of petitioner and her witnesses-in-chief with respect to their provision of food, clothing and shelter for decedent during the marriage and through the time of the divorce, prior to decedent's reaching age 21. Additionally, the court finds that while objectant's testimony with respect to his sporadic employment during and after the marriage is credible, virtually his entire testimony controverting the testimony offered by petitioner and her witnesses-in-chief regarding his failure to support decedent is not credible.

Additionally, in contesting his purported failure to support decedent, objectant alleges that at the time of the divorce, decedent had already become emancipated, as evidenced by the parties' divorce Stipulation, thereby relieving him of his obligation to support her (see Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Court Act § 413, at 88). Assuming arguendo that there is a sufficient record of decedent's financial emancipation at the time of the parties' divorce, just after decedent reached age 18, the court still has sufficient grounds to find that objectant failed to support decedent within the parameters of EPTL 4-1.4(a). More particularly, the record establishes

Also, the court finds objectant's reliance on the terms of the Stipulation (i.e., that he was never explicitly obligated by a court to provide decedent with financial support) to be unavailing [*7](see Matter of Quinn, NYLJ, March 12, 1993, at 27, col. 2 [New York]; see also Matter of Brennan, supra).

As to objectant's alleged abandonment of decedent, in applying EPTL 4-1.4(a), abandonment has been defined as a voluntary breach or neglect of the duty to care for and train a child, and the duty to supervise and guide the child's growth and development (see Matter of Musczak, 196 Misc. 364, supra, at 365-366; Matter of Herbster, 121 NYS2d 360, 361; Matter of Channon, NYLJ, April 17, 1991, at 26, col. 1, supra).

To the contrary, the credible testimony of petitioner and her witnesses-in-chief clearly establishes that objectant had virtually no role in rearing decedent during her childhood. In fact, the court notes several instances in the record where objectant recalled events purportedly relating to his involvement with decedent during her childhood, only to

have petitioner and her witnesses testify, credibly, that those events actually pertained to decedent's sister. Moreover, the credible testimony of petitioner's witnesses indicates that objectant never knew of decedent's resumption of her education after the divorce or of her fatal illness, until learning this information at her wake. Furthermore, the credible evidence supports petitioner's claim that objectant's contact with decedent subsequent to the divorce amounted to, at best, a half-dozen personal visits in nearly 12 years. Also, the court rejects objectant's testimony that he was prevented from seeing decedent by petitioner, among others (see Matter of Wilson, NYLJ, Feb. 1, 1994, at 23, col. 3 [New York]). In short,

Objectant contends that since the Stipulation did not explicitly address any custody issues pertaining to decedent, it effectively treated decedent as emancipated, thereby fully absolving objectant from any purported abandonment of decedent. This argument is, again, unavailing (see e.g. Matter of Wilson, supra).

Accordingly, in light of the foregoing findings, pursuant to EPTL 4-1.4(a), objectant is disqualified both from sharing in the settlement proceeds allocated to the cause of action for decedent's wrongful death (EPTL 5-4-4[a]; see Matter of Arroyo, 273 AD2d 820, supra) and from taking a distributive share in the settlement proceeds allocated to the cause of action for decedent's conscious pain and suffering (see EPTL 4-1.1[a][1]; see Matter of Gonzalez,196 Misc 2d 984, supra).

Counsel fees and legitimate disbursements spent in connection with the underlying action against the pharmaceutical company are hereby fixed in the amended sums of $25,697.98 and $19,406.07, respectively. ^[FN3]

Petitioner shall be reimbursed from the settlement proceeds the sum of $8,190.00, which she advanced toward payment of funeral expenses. Additionally, the sum of $5,250.00 shall be allocated to the expense of obtaining the transcript of the hearing, and payable as an expense of estate administration (SCPA 506[6][c]).

Petitioner's statutory commissions, which are calculated based on the gross settlement proceeds, less counsel fees, legitimate disbursements spent in connection with the underlying action against the pharmaceutical company, funeral expenses, and other approved expenses of estate administration (see EPTL 5-4.4[b]; Turano and Radigan, New York Estate Administration, § 20.06[c], at 662-663 [2004 ed.]), are hereby fixed and allowed in the amount of $1,897.80, and are payable from the settlement proceeds. [*9]

Distribution and allocation of the net settlement proceeds of $36,058.15 shall be made as follows: $18,029.07 to petitioner, in her capacity as administratrix of the estate for distribution pursuant to EPTL 4-1.1(a)(1), as allocation toward the cause of

Prior to the payment of the foregoing amounts for reimbursement of funeral expenses, expenses of administration, statutory commissions, and distributions, petitioner shall submit a final account, reflecting all amended calculations set forth herein, with the decree to be settled. Also, in light of the court's approval of the allocation of one-half of the net settlement proceeds to the cause of action for conscious pain and suffering, the decree shall be noticed for settlement upon the New York State Department of Taxation and Finance.

Finally, the court denies petitioner's application to have sealed the "Settlement Agreement and related documents" pertaining to the underlying action against the pharmaceutical company.

Pursuant to 22 NYCRR part 216, there is a strong presumption that a legal proceeding should be conducted in public, and a party seeking to seal a court file must make a particularized showing of "good cause" to warrant sealing the file (22 NYCRR 216.1[a]; see Matter of Goldman, NYLJ, Jan. 2, 1992, at 22, col. 1 [New York]). In this

In the instant case, petitioner's application is predicated upon the following reasons: (i) confidentiality was an "important" component of the settlement agreement; (ii) the documents [*10]contain "confidential and personal information"; and (iii) there is no public interest "other than curiosity in having the resolution of this private dispute made public" (see Petitioner's Memorandum In Support, dated October 17, 2002). The court disagrees, finding that petitioner has failed to make the requisite showing to warrant the relief sought.

Initially, petitioner has failed to furnish this court with the Settlement Agreement in the underlying action against the pharmaceutical company. In fact, the only papers which petitioner submitted in connection with the underlying action were the Amended Verified Complaint and Note of Issue in that action (see Petition, Ex. D and G). Moreover, as set forth by petitioner's counsel in his affirmation supplementing the instant petition, the underlying action against the pharmaceutical company, which was ready for trial at the time of settlement, was predicted on decedent's alleged ingestion of a certain prescription drug. The Amended Verified Complaint in that action indicates that, after

In light of the foregoing conclusion, the court's directive temporarily sealing the file in the underlying proceeding, as set forth in the Order to Show Cause dated November 13, 2002, is hereby rescinded, in all respects.

Settle decree.

Dated:June 16, 2004

White Plains, New York

_________________________________ HON. ANTHONY A. SCARPINO, JR.

Westchester County Surrogate

TO:PIRROTTI LAW FIRM, LLC

Attorneys for Petitioner

2 Overhill Road - Suite 200

Scarsdale, New York, 10583

KAMINSKY & RICH, ESQS. [*11]

Attorneys for Respondent

399 Knollwood Road

White Plains, New York 10603