Sutherland v. City of New York

107 A.D.2d 568, 483 N.Y.S.2d 307, 1985 N.Y. App. Div. LEXIS 42573

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 1985
• Status: Published

Opinions

— Order, Supreme Court, New York County (Ira Gammerman, J.), entered March 16, 1984, which, inter alia, removed plaintiff Hester Sutherland as the guardian of her daughter and appointed a substitute guardian ad litem, is reversed, on the law, the facts, and in the exercise of discretion, plaintiff Hester Sutherland is reinstated as guardian and the appointment of the substitute guardian ad litem is vacated, without costs.

Hester Sutherland (mother) is the natural mother of Maude. In November, 1980 the mother commenced, as Maude’s legal guardian and on behalf of herself, a medical malpractice action against defendants to recover damages for personal injuries suffered by Maude, which include below-knee amputation of both of her legs, partial amputation of her upper extremities, as well as hearing, vision and speech impairments, coupled with brain damage. The verified complaint alleges, inter alia, that the defendants failed to properly diagnose and treat this child for pneumococcal sepsis, sickle-cell anemia, dehydration and meningitis.

After issue was joined and discovery was completed, Special Term supervised settlement negotiations. The mother accepted an offer from the defendants of $1.2 million plus $450,000 for attorney’s fees and disbursements, in settlement of the claims of both Maude and herself. The defendants did not condition their offer upon the structured payment of the funds. However, Special Term expressed its own view that the best interests of the infant required that payment be made over a period of years. The mother disagreed and insisted that the funds be paid in a lump sum. In response to this position of the mother, Special Term entered an order removing the mother as guardian and replacing her with a guardian ad litem.

We have no doubt that the trial court was solely motivated by its concern for what it perceived to be in the child’s best interest; however, our examination of the settlement proceedings leads us to conclude that the mother, as guardian, “has been shown to be duly qualified and capable * * * It is the policy of this State to encourage parents to act as guardians” (Matter of Manufacturers Hanover Trust Co., 83 AD2d 808). This court stated in Matter of Leggett (25 AD2d 727, 728), “CPLR 1201 and 1202 * * * [indicate] the legislative preference for the appearance of the natural guardian”. In reaching our determination, we have carefully considered the court’s responsibility only to approve settlements of the infant’s claims that are in the best interests of the infant (CPLR 1207). However, where the mother has negotiated and agreed to accept a substantial sum in settlement and the only disagreement with the court is whether that amount should be paid in one sum or in structured payments, we find such disagreement to be insufficient to warrant the removal of the natural parent as guardian ad litem.

We hold that this power to approve a settlement does not translate into a power to dictate the terms of settlement (Lee v Gucker, 27 AD2d 722; Smith v Ford Motor Co., 38 AD2d 852). Thus, we find that Special Term abused its discretion in removing the mother as guardian. Concur — Murphy, P. J., Ross, Carro and Lynch, JJ.