§ 5-4.6 Application to compromise action\n (a) Within sixty days of the application of an administrator appointed\nunder 5-4.1 or a personal representative to the court in which an action\nfor wrongful act, neglect or default causing the death of a decedent is\npending, the court shall, after inquiry into the merits of the action\nand the amount of damages proposed as a compromise either disapprove the\napplication or approve in writing a compromise for such amount as it\nshall determine to be adequate including approval of attorneys fees and\nother payable expenses as set forth below, and shall order the defendant\nto pay all sums payable under the order of compromise, within the time\nframes set forth in section five thousand three-a of the civil practice\nlaw and rules, to the attorney for the administrator or personal\nrepresentative for placement in an interest bearing escrow account for\nthe benefit of the distributees. The order shall also provide for the\nfollowing:\n (1) Upon collection of the settlement funds and creation of an\ninterest bearing escrow account, the attorney for the administrator or\npersonal representative shall pay from the account all due and payable\nexpenses, excluding attorneys fees, approved by the court, such as\nmedical bills, funeral costs and other liens on the estate.\n (2) All attorneys fees approved by the court for the prosecution of\nthe action for wrongful act, neglect or default, inclusive of all\ndisbursements, shall be immediately payable from the escrow account upon\nsubmission to the trial court proof of filing of a petition for\nallocation and distribution in the surrogate's court on behalf of the\ndecedent's estate.\n (3) The attorney for the administrator or personal representative in\nthe action for wrongful act, neglect or default who receives payment\nunder this section shall continue to serve as attorney for the estate\nuntil the entry of a final decree in the surrogate's court.\n (b) If any of the distributees is an infant, incompetent, person who\nis incarcerated or person under disability, the court shall determine\nwhether a guardian ad litem is required before any payments are made, in\nwhich case the court will seek an immediate appointment of a guardian ad\nlitem by the surrogate's court or, if the surrogate's court defers, the\ncourt shall make such appointment. Any guardian appointed for this\npurpose shall continue to serve as the guardian ad litem for the person\nrequiring same for all other purposes.\n (c) The filing fee in the surrogate's court shall be computed based on\nthe amount of the gross estate prior to any payments made under this\nparagraph.\n (d) The written approval by such court of the compromise is conclusive\nevidence of the adequacy of the compromise in any proceeding in the\nsurrogate's court for the final settlement of the account of such\nadministrator or personal representative.\n (e) Nothing in this section shall be deemed to preclude the attorney\nfor the administrator or personal representative from petitioning the\nsurrogate's court for approval of a compromise and for allocation and\ndistribution thereof.\n (f) No letters of administration shall be issued which will in any way\nserve to abrogate the rights or obligations of an administrator or\npersonal representative or an attorney representing an administrator or\npersonal representative under this section.\n (g) In the case of a recovery of an award from the September eleventh\nvictim compensation fund of two thousand one established pursuant to\ntitle IV of the federal air transportation safety and system\nstabilization act, public law 107-42, as amended, where the award\nconsists solely of non-economic losses (funeral expense reimbursement\nbeing included as non-economic losses herein) a personal representative\nmay file a consent to the adequacy of the award by all interested\nparties in lieu of a compromise proceeding.\n
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