By verified petition filed on August 16, 2010, the petitioner seeks an order permitting a partial withdrawal from the trust of her son, VG, to pay the cost of repairs for her brother’s automobile and for attorney’s fees incurred in connection with the instant application.
The instant verified petition contains an affidavit of the petitioner and six annexed exhibits. The first is labeled exhibit A and contains an affirmation of petitioner’s counsel. The second is labeled A-1 and contains a proposed order for partial withdrawal of her son’s funds. The third is labeled A-2 and contains another proposed order for partial withdrawal of the infant’s funds. The fourth is labeled B and contains an HSBC bank statement dated June 19, 2010, showing the balance of funds held by the injury petitioner on behalf of the infant. The fifth is labeled exhibit C and purports to be an estimate for the repair of a 2001 Honda Odyssey. The sixth and final exhibit is labeled D and appears to be a physician’s report on the competency of the infant.
CPLR § 1211(a) provides as follows: Allowance for infant’s support. (a) Petition to supreme court, county court or surrogate’s court; contents. A petition to the supreme court, county court or the surrogate’s court for the application of an infant’s property or a portion thereof to the infant’s support, maintenance or education shall set forth in detail: 1.the amount and nature of the infant’s property, where it is situated and how invested, his income from such property or any other source and any claim against the infant; 2. whether or not the infant’s parents are living and, if either of them is living, all circumstances relative to their ability to support the infant, and, if neither of them is living, the names of other persons legally obligated to support the infant and the injury circumstances relative to their ability to support the infant; and 3. the terms of any previous order made by any court within or without the state for similar relief and the disposition made of any property pursuant thereto.
The matters that should be considered when applications for withdrawals of infant funds are requested are fully set forth DeMarco v. Seamen. Justice Cuff set forth the underlying principles which courts have since applied when faced with like situations: It is the duty of the court to protect the child’s fund until he reaches his majority; it is the duty of the parent to support the child until that event; it is the duty of the petitioner to submit detailed information which would justify the court’s authorization to deplete the infant’s funds for extraordinary expenses beneficial to the child and not affordable to the parents, and such approved expenditures should be disbursed directly to the creditor. The detailed information required to be joined with the petition for withdrawal of the infant’s fund, as outlined in DeMarco, supra, was emphasized and enumerated in Matter of Stackpole, and codified in Uniform Rules for Trial Courts 22 NYCRR 202.67(f)
Among the items to be included in the application under 22 NYCRR 202.67(f) are: (1) a full explanation for the purpose of the withdrawal; no bike was found.
(2) a sworn statement of the reasonable cost of the proposed expenditure; (3) the infant’s age; (4) the date and amounts of the infant’s and parents’ recovery; (5) the balance from such recovery; (6) the nature of the infant’s injuries and present condition; (7) a statement that the family of the infant is financially unable to afford the proposed expenditures; (9) any other facts material to the medical application.
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