By Order to Show Cause dated December 11, 2013 of Hon. Carolyn E. Demarest and a Petition dated November 25, 2013, petitioner Jean Cutrone as Executrix of the Estate of Nicoletta Gargano, deceased, seeks an "order" "[p]ursuant to EPTL §5-4.6 requiring respondent's insurance carrier to issue the proceeds of this settlement." The cited statute provides for judicial approval of a compromise of "an action for wrongful act, neglect or default causing the death of a decedent" (see EPTL §5-4.6[a].)

For some reason that does not appear on the papers submitted, the Order to Show Cause does not provide for service upon respondent Peter Tsahalis. In the absence of service upon Respondent pursuant to CPLR 308, nothing in this special proceeding could be binding upon him (see CPLR 403[c],[d] Hernandez v Mueller, 29 Misc 3d 522 [Sup Ct, Kings County 2010].) As the person against whom a claim has apparently been asserted on behalf of the decedent's estate and her distributees (see EPTL §5-4.1), Respondent is a necessary party to any proceeding seeking judicial approval of the compromise of such a claim (see CPLR 1001[a]), and nothing shows that service upon his insurance carrier, GEICO, as required by the Order to Show Cause was intended to be, or [*2]would be, effective to establish personal jurisdiction over him.

The Petition must, therefore, at the least, be denied. Other considerations, however, require dismissal.

EPTL §5-4.6 provides for an application for judicial approval for the compromise of a claim for wrongful death to be made "to the court in which an action . . . is pending" (see EPTL §5-4.6[a].) No action for the wrongful death of Petitioner's decedent is pending before this court. (See Attorney's Affirmation ¶ 14.) Moreover, the Letters Testamentary dated June 21, 2013 granted to Petitioner by Surrogate's Court, Kings County, states, "And you are hereby restrained from compromising any right of action granted to you by special provision of law or otherwise . . . without the further order of this court."

The allocation of responsibility between Supreme Court and Surrogate's Court for the approval of settlements of wrongful death claims and the distribution of settlement proceeds is not a matter of legislative accident.(See Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 336-39 [1993].) Unlike CPLR 1207, concerning the settlement of a claim by an infant, judicially declared incompetent, or conservatee, which explicitly provides for a special proceeding for that purpose if no action is pending, the Court is aware of no similar provision for a special proceeding for judicial approval of the settlement of a wrongful death claim. Whether Supreme Court has inherent power to entertain such a proceeding pursuant to the State Constitution's grant of almost unlimited general jurisdiction (see Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d at 338-39), and whether the Surrogate's limit on the authority of a personal represented in the manner illustrated by the Letters Testamentary granted here would preclude such a proceeding (see SCPA §702[1]), are not questions the Court is prepared to address on this record.

Although not necessary for determination of this Petition, the Court notes that, on an application for judicial approval of a wrongful death compromise the court has "the right and obligation . . . to evaluate and resolve the fairness and reasonableness of the settlement, including the amount to be paid, the manner in which the payment obligation is amortized and the parties' arrangements for payment of costs and attorney's fees" (see Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d at 337-38; see also Matter of DeLong, 89 AD2d 368, 370 [4th Dept 1982] ["best interests of the parties interested, the distributees"].) Petitioner makes no showing that the proposed settlement would be fair and reasonable and in the best interests of the distributees.

Judgment shall enter dismissing the Petition, without prejudice.

February 3, 2014___________________

Jack M. Battaglia

Justice, Supreme Court