In this proceeding for allocation of the net proceeds of a wrongful death recovery, the decedent was a cleanup worker and was employed in the recovery and debris removal following the terrorist attacks on September 11, 2001; it was alleged that the conditions which led to his death were a direct consequence of those efforts. An action for the decedent's injuries was commenced in the United States District Court for the Southern District of New York pursuant to [*2]the Air Transportation Safety and System Stabilization Act of 2001. A Settlement Process Agreement was entered into between the petitioner and the defendants and their insurer pursuant to which the insurer will pay the decedent's estate the sum of $392,267.76. The Port Authority of New York and New Jersey is contributing an additional sum of $29,404.88 to the settlement so that the total settlement amount is $421,672.64 The adequacy of the settlement against the defendants was approved by order of the United States District Court for the Southern District of New York dated June 3, 2011. The court's file also contains an affidavit from a principal of the Allocation Neutral assigned by Hon. Alvin K. Hellerstein, United States District Court for the Southern District of New York, which provides that counsel's fees have already been approved in the sum of $103,544.78, plus allowable disbursements of $7,453.48, leaving the sum of $310,674.38 to be distributed pursuant to the order of this court.

The decedent was survived by his wife and two infant daughters, one of whom has since attained her majority. The petition proposes to allocate the entire recovery to the cause of action for personal injuries and to distribute the net recovery pursuant to EPTL 4-1.1. The guardian ad litem appointed to represent the interests of the infant child has filed her report wherein she indicates that she has no objection to the relief requested. The petition also alleges that the funeral bill has been paid in full and that no reimbursement therefor is sought and that the administrator has waived her right to statutory commissions. Although the share of the infant child would be higher if the recovery was allocated entirely to the wrongful death recovery, it appears that there was likely considerable pain and suffering and that the amounts involved do not warrant a hearing on an allocation different than that proposed by the petitioner.

Accordingly, the petition is granted. Although the petition provides for the payment of the claim of Paradise Enterprises in the reduced amount of $30,512.38, the decree submitted by petitioner's counsel fails to direct payment of the claim.

The court has reviewed the affirmation of legal services submitted by the guardian ad litem. The court notes that the guardian ad litem filed a thorough report and that he has expended approximately 3.5 hours on this proceeding. The court is cognizant of the criteria to be applied in the fixing of attorneys' fees (Matter of Potts,123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925] Matter of Freeman, 34 NY2d 1 [1974]), and that these factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem (Matter of Burk, 6 AD2d 429 [1st Dept 1958] Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978] Matter of Reisman, NYLJ, May 18, 2000, at 35, col 4 [Sur Ct, Nassau County]). Considering the foregoing, the court fixes the fee of the guardian ad litem in the sum of $875.00.

After the payment of the claim and the fee of the guardian ad litem, there remains the sum of $279,287.00 to be distributed to the estate's beneficiaries. Pursuant to EPTL 4-1.1, the surviving spouse is entitled to the first $50,000.00 plus half the balance for a total of $164,643.50. The decedent's two daughters, Monika and Stephanie, are each entitled to the sum of $57,321.75. Because Stephanie is an infant, her share must be paid to a guardian of her property who has been or will be appointed by this court or another court of competent jurisdiction.

Settle decree.

Dated: March 17, 2014 [*3]

EDWARD W. McCARTY III

Judge of the

Surrogate's Court