DECISION AND ORDER

Sara Louise Gorrow was granted Limited Letters of Administration on May 23, 2006, for the purpose of prosecuting a cause of action in favor of the deceased for pain and suffering and wrongful death. The decedent died, intestate, as a consequence of a motor vehicle accident on August 14, 2004, leaving two surviving infant children, Kadence E.W. and Cody S.T. On July 6, 2009, Supreme Court approved a wrongful death settlement in the amount of $50,000.00 and referred the matter to this Court for a determination as to the further distribution of the net settlement proceeds of $32,121.11.

The instant petition, seeking direction as to that distribution, was filed on March 10, 2010, accompanied by an affidavit of counsel. Two Orders Appointing Guardians Ad Litem were issued by this court on March 30, 2010. One order appointed Kevin L. Peryer, Esq. as Guardian Ad Litem for Kadence E.W., an infant, and the second appointed Brian A. Snell, Esq. as Guardian Ad Litem for Cody S.T., an infant. Citations were served, and the matter was placed on the Court's calendar for April 26, 2010.

On April 13, 2010, Attorney Peryer filed a Report of Guardian Ad Litem on behalf of his ward. In his report, he argues that the proceeds to be distributed between the decedent's two children should be distributed pursuant to what has come to be known as the Kaiser formula (see, Matter of Kaiser, 198 Misc. 582). On April 22, 2010, Attorney Snell filed a Report of Guardian Ad Litem on behalf of his ward. He argues that the proceeds should be distributed evenly, with each receiving a fifty percent share. On the return date, having failed to reach a resolution of the matter, the parties were given ten days to make any further submissions to this Court. At that time, counsel agreed that a hearing was unnecessary and consented to this Court deciding the Petition upon the submission of papers only. As a result, Attorney Peryer filed a Supplemental Report of Guardian Ad Litem on April 28, 2010, and Attorney Snell filed his Supplemental Report on April 30, 2010.

Estates, Powers and Trusts Law � 5-4.4 (a) (1) provides that wrongful death proceeds, at issue here, are to be distributed to those entitled, "in proportion to the pecuniary injuries suffered by them". As there is no argument that the proceeds are to be completely distributed to the two surviving children of the decedent, the Court is left to decide precisely how those proceeds should be distributed. After a thorough review of the papers now before it, and after extensive research on the issues presented, this Court is left with deciding whether the proceeds should be split between the decedent's two children pursuant to the Kaiser formula, shared equally, or split in some other ratio fashioned by this Court.

Initially, the Court will address the Kaiser formula urged by Attorney Peryer. This fractional formula, first enunciated in Matter of Kaiser, 198 Misc. 582, supra, is generally used as a starting point in matters such as this. The denominator of the fraction is found by adding up the total number of years of support the decedent had, at the time of his death, with respect to each distributee. The numerator is the number of years, from the date of death, that each individual distributee would have expected to have been supported by, in this case, their common father. Each distributee's fraction of anticipated dependency is then multiplied by the net proceeds.

In Kaiser, the decedent left behind his spouse and one child. Under the formula, the spouse received 55.8 percent of the net proceeds, and the child received 44.2 percent. [*2]

In this matter, the decedent left behind no spouse but two children. Kadence E.W. was ten months old at the time of her father's death; Cody S.T. was eleven years and five months old at the time. Applying the Kaiser formula here, the child Kadence E.W. would receive 67.8 percent of the net proceeds ($21,773.25). The child Cody S.T. would receive 32.2 percent ($10,347.86) of the net proceeds.^[FN1]

Attorney Peryer, on behalf of the child Kadence E.W., urges the Court to follow the Kaiser formula. While he admits that its application is not mandatory, he encourages the Court to adopt its use here, given the disparity in the ages of the two distributees. He argues that Kadence E.W. would have depended upon the decedent for support for approximately eleven years longer than Cody S.T. As such, he argues that she is entitled to larger than a fifty percent share.

Attorney Snell, on behalf of the child Cody S.T., argues that the Kaiser formula should not be rigidly applied under these circumstances. He urges the Court to split the proceeds evenly pointing out the fact that Kadence E.W. will receive full social security survivor benefits upon Cody S.T. attaining the age of eighteen. As such, she will receive those particular benefits for a longer period of time than Cody S.T. In addition, Attorney Snell advises the Court that his ward is deemed learning disabled by his school system and argues that this warrants an equal sharing of the proceeds.

Attorney Peryer counters, arguing that Cody S.T.could, potentially, receive social security survivor benefits until he reaches the age of nineteen. He further argues that, in any event, such benefits are typically paid to a child's parent or guardian to be utilized as financial support for the care of the child. As such, he argues that the Kaiser method is the most equitable way to divide the proceeds.

In response, Attorney Snell argues that whether or not Cody S.T. ceases receiving social security survivor benefits at eighteen or nineteen years of age is irrelevant, as Kadence E.W. will still receive far more money than Cody S.T. under either situation. He further urges, citing Bryant v New York City Health & Hosps. Corp., 93 NY2d 592, that social security survivor benefits "correspond to an award to a child in a wrongful death action for the future lost earnings of a parent."

In the matter at hand, this Court is asked to divide a relatively small amount of net proceeds between two half-siblings. As the wrongful death action was settled for the limits of the insurance policy, or $50,000.00, we are left to decide how to apportion $32,121.11 between decedent's two children. If, as stated above, the Kaiser formula is followed, the child Kadence E.W. will receive $21,773.25, and the child Cody S.T. will receive $10,347.86. If the Court chooses, instead, to split the proceeds evenly, each child will receive $16,060.55. At issue, ultimately, is the $5,712.70 more that Kadence E.W. would receive under Kaiser, but not if this Court splits the proceeds evenly.

Clearly, this Court wishes, for the sake of these children, that the net proceeds were a far larger sum of money. As well, the Court is mindful, as already noted, that Guardian Ad Litem fees must also be deducted from the net proceeds. Weighing everything that has been presented, [*3]this Court will direct that the net proceeds be divided evenly between the two distributees. The fact that the figures are so relatively low, in this instance, certainly plays a role. If Kaiser were followed, after the deduction of Guardian Ad Litem fees, the child Cody S.T. would receive less than $10,000.00. This would be an almost insignificant figure for a child who lost his father at the age of eleven years, five months.

A review of the Kaiser case reveals that the family unit, here, is not what Kaiser contemplated. In Kaiser, the deceased left behind a spouse and one child in an intact family. As the Kaiser widow would have depended financially upon the deceased for a longer period of time than the child, she received a larger percentage of the proceeds under the formula. Such is not inequitable under Kaiser, as she and the child lived in the same household and she was responsible for the upbringing of that child. This is not the family dynamic here. In this instance, we are faced with two children, each in a different household, living with different mothers. Neither mother is entitled to any part of the proceeds at issue. As such, this Court does not believe the Kaiser formula should be strictly applied to this matter (see, Matter of Slater, 108 Misc 2d 555).

In addition, this Court finds some merit to Attorney Snell's argument regarding social security survivor benefits (see, Civil Practice Law and Rules � 4545 [c]). This Court notes, however, that neither Guardian Ad Litem made any argument with regard to the amount of financial support the decedent made to his children prior to his death. There is nothing before this Court regarding what, if anything, was paid in child support for the support of either child. In addition to financial support, the Court can also look to the love and guidance lost to the decedent's distributees. There was nothing presented, however, in this regard either.

As a result of the foregoing, this Court has determined that it would be more appropriate to evenly divide the net proceeds between the decedent's two distributees (see, Matter of Acquafredda, 189 AD2d 504; Matter of Wright, 16 Misc 3d 1102A).

While this result is not entirely satisfactory, it reflects the Court's balancing of the relative ages of the children, their periods of anticipated dependency, the emotional loss they have suffered which cannot be quantified, the dynamic of their current family life, their own individual circumstances, the other resources which may be available to them, and the relatively small fund available for distribution. It cannot be gainsaid that these available funds, even if awarded in full to one child, would be vastly insufficient to support either child for his or her period of anticipated dependency. While the simplicity of the application of a formula to obtain a result has a certain appeal, that appeal is short lived when all of the other factors are taken into consideration. For

"[t]he ends of equity are not always best served by arithmetic yardsticks. Experience has shown that there may be variations and factors calling for equitable adjustments to relax an otherwise inelastic application of Kaiser (supra). Its years of dependency' formula is not brittle, but malleable, and not beyond the exercise of the court's sound discretion. No doubt the Kaiser allocation may be employed often, with no resulting imbalance. The history of the process reveals as much. Nevertheless, there are other instances, as in the case before us .... in which departure from Kaiser is within the boundaries of an informed discretion" (Matter of Acquafredda v Czgier, 189 AD2d 504,517).

For the reasons set forth herein, it is

ORDERED that the net proceeds of the wrongful death action shall be split equally [*4]between the two distributees, after the deduction of guardian ad litem fees, such that Kadence E.W. and Cody S.T. shall each receive fifty percent thereof; and it is further

ORDERED that Kevin L. Peryer, Esq., Guardian Ad Litem for Kadence E.W., and Brian A. Snell, Esq., Guardian Ad Litem for Cody S.T., shall submit to this Court, on notice, within twenty one (21) days from the date of this Decision and Order, their individual Request to Fix Fee forms, and individual Affidavit of Services as Guardian Ad Litem forms; and it is further

ORDERED that, within twenty one (21) days from the date this Court orders the fees to be paid to the Guardians Ad Litem in this matter, the attorney for the estate shall submit to this Court, on notice, a proposed final decree, consistent with the

Decision and Order herein.

ENTER

____________________________

Surrogate

Dated at Malone, New York, this 18th day of April, 2011.