In this proceeding by the administratrix, the decedent's spouse, to compromise causes of action arising from the decedent's death and to judicially account for the settlement proceeds, the decedent's son, whose whereabouts were previously alleged to be unknown, appeared by counsel and sought leave to file objections to the proposed allocation of $750,000 for the decedent's personal injuries and $1,000,000 for his wrongful death. The decedent's only distributees are the spouse and the son. The son, who receives 50% of any increase to the amount allocated to the personal injury cause of action, while he does not share in any portion of the wrongful death proceeds because he suffered no pecuniary injuries arising from the decedent's death, proposes an allocation of $1,000,000 to the personal injury action and $750,000 to the wrongful death action.

The last time the proceeding appeared on the calendar the parties stipulated that: (1) the papers submitted by the son in support of his application should be deemed his objections to the account and his submission in support of the objections; (2) the papers submitted by the spouse in opposition to the son's motion should be deemed her submission in opposition to the son's objections; and, (3) the court should determine the allocation issue on the papers submitted.

The decedent died intestate on November 30, 2006, as a result of alleged medical malpractice, when he contracted Legionnaires' disease in a hospital following cardiac surgery on October 11, 2006. At the time of his death, the 64-year-old decedent was employed as a Senior Court Clerk by the New York State Unified Court System.

In support of the proposed allocation, the spouse notes that the decedent's pain and suffering lasted for only a period of approximately seven weeks, and she cites two cases in which jury awards for pain and suffering were substantially reduced (see Clottter v New York City Transit Auth, 68 AD3d 518 [2009], lv denied, 14 NY3d 713 [2010]); Orelanno v 29 East 37th St., 4 AD3d 247 [2004], lv denied, 4 NY3d 702 [2004]). The son counters that it is undisputed that the decedent suffered greatly prior to his death, and contends that the allocation proposed by the spouse is intended to thwart his entitlement to share in the settlement proceeds, as he was over the age of 21 on the date of the decedent's death and is entitled to share only in the personal injury proceeds.

To recover damages for pain and suffering, an injured plaintiff must have some level of awareness, and the elements to be considered when reaching an allocation for personal injury are the [*2]degree of consciousness, severity of pain, apprehension of impending death and duration (see Regan v Long Is. R. R. Co., 128 AD2d 511 [1987 ]). In contrast, a wrongful death action involves pecuniary injuries suffered by the decedent's distributees (see EPTL 5-4.3). Where the decedent is a wage earner the damages are to be calculated, at least in part, from factors such as the decedent's present and future earnings potential, the decedent's age, character and condition, and the circumstances of the distributees; while non-wage earner pecuniary injuries include increased expenditures incurred by a distributee to continue services provided by the decedent, as well as compensable losses of a personal nature, such as loss of guidance (see Gonzalez v New York City Housing Auth., 77 NY2d 663 [1991]).

Under the limited facts presented, including that the decedent was gainfully employed and apparently would have been entitled to a pension upon his retirement, and that the decedent suffered pain and suffering for a period of approximately seven weeks, the allocation of the sum of $750,000 to the personal injury action, i.e., approximately $107,000 a week and 43% of the entire recovery, is appropriate and more than fair to the son who was apparently estranged from the decedent. Accordingly, the son's objections are dismissed.

Counsel fees and disbursements are allowed in the sum requested. The sum of $7,994 is to be paid to the petitioner in reimbursement of the decedent's funeral expenses. Commissions are allowed in the amount requested.The net distributable proceeds allocated to personal injury are to be paid to the decedent's distributees pursuant to EPTL 4-1.1. The net distributable proceeds allocated to wrongful death are to be paid to the spouse.

Settle decree.

SURROGATE