Matter of Dixson , 2021 NY Slip Op 02870 ( 2021 )

Matter of Dixson (2021 NY Slip Op 02870)

Matter of Dixson

2021 NY Slip Op 02870

Decided on May 06, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 06, 2021
Before: Renwick, J.P., Kapnick, Singh, Kennedy, JJ.

File No. 2004-1862 Appeal No. 13780 Case No. 2020-03924

[*1]In the Matter of Alton F. Dixson as Co-Administrator of the Goods, Chattels and Credits which were of Julius E. Dixson, Sr. Deceased.

In the Matter of Alton F. Dixson et al., Petitioners-Appellants,

v

Julius E. Dixson, Jr., Objectant-Respondent.

Law Office of Arnold E. DiJoseph, P.C., New York (Arnold DiJoseph of counsel), for appellants.

Julius E. Dixson, Jr., respondent pro se.

Decree, Surrogate's Court, New York County (Rita Mella, J.), entered September 24, 2020, which, pursuant to the court's May 27, 2020 decision allocating to objectant-respondent 50% of the proceeds of a wrongful death settlement and the other 50% divided into one-third shares to the remaining three distributees, ordered $91,170.74 be paid to objectant, and $30,390.25 be paid to each of the two petitioners and a nonparty, unanimously reversed, on the law, without costs, and the matter remanded for a hearing on the issue of pecuniary loss.

Petitioners commenced this proceeding in Surrogate Court seeking judicial allocation and distribution of the settlement proceeds resulting from a Supreme Court wrongful death action. The proceeds of a wrongful death action belong to the statutory distributees of the decedent and not to the estate; therefore, the law does not presume equal distribution of shares (see EPTL 5—4.3 and 5—4.4[a][1] ). Instead, each distributee receives damages in proportion to the pecuniary injuries suffered by him or her, as determined after a hearing in Surrogate's Court (see EPTL 5—4.4[a][1]). Here, Surrogate's Court allocated objectant 50% of the settlement proceeds of the wrongful death action without conducting a hearing on the issue of pecuniary loss. Accordingly, the matter is remanded for a hearing at which the interested persons may appear and present evidence with respect to the petition.

In light of the foregoing conclusions, we need not address petitioners' remaining contentions.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 6, 2021