In re the Estate of Wright
—Order, Surrogate’s Court, Bronx County (Lee Holzman, S.), entered August 2, 1999, which denied that portion of petitioner’s application to deem a waiver and consent valid and to dismiss the objections and ordered a trial, unanimously reversed, on the law, with costs, application to deem a waiver and consent valid and to dismiss the objections granted.
Shamar Kareem Wright was born on January 13, 1996 and died on November 23, 1996. During his brief life, Shamar was intermittently a patient at Montefiore Medical Center for treatments which gave rise to claims for negligence and which were ultimately settled for $240,000 for his conscious pain and suffering. Shamar’s mother, Deirdre Wright, commenced a paternity proceeding against Franklin Salkey who, once a paternity test established that he was the biological father, finally admitted that he was Shamar’s father on November 8, 1996. Salkey never made any support payments other than in the form of claimed cash payments to Wright or the babysitting services of his sister. Salkey did not assume responsibility for and made no contribution to Shamar’s medical bills, funeral costs, headstone or coffin. Salkey did not claim that he paid rent, utility bills, or for any other items required for Shamar. Salkey alleged that he came into contact with Shamar when he visited Wright. He does not appear to have been involved in any decision whatsoever involving the circumstances of Shamar’s brief life. Salkey signed a waiver and consent on February 5, 1999.
Wright petitioned the Surrogate’s Court for leave to settle Shamar’s wrongful death claims. She claimed that, based upon
With respect to Salkey’s execution of the waiver and consent, he bears an initial burden of articulating a claim of good cause to set aside the waiver based on “ ‘fraud, collusion, mistake, accident, or some other ground of the same nature’ ” (Matter of Frutiger,
Regarding Salkey’s claims that he provided support to or on behalf of Shamar, Salkey submitted insufficient proof. Until two weeks before Shamar’s death, Salkey denied paternity. While Wright specifically denied receiving any support from Salkey, his allegations of providing cash to Wright are vague and unsubstantiated. Salkey is unable to explain with any detail what support he provided Shamar with the sole exception of money provided to his sister who babysat the infant, as to which there is no affidavit from the sister. Salkey’s conclusory statements are insufficient to create an issue of fact as to whether he provided support (Matter of Baecher,