In Seaton v. County of Suffolk, decided late last November, a New York appeals court ruled that a baby born after his father died was a proper wrongful death plaintiff under state law.
In an unusual case, a man impregnated his girlfriend several weeks before he was killed leaving a house just as it was being raided by police. An officer tripped over a root, bumped into another officer, and one of the three shots fired by mistake hit Jose Colon in the head.
Just prior to his death, Mr. Colon had been told that he was going to be a father, and he had announced publicly that he intended on "being there" for the baby. Later a genetic marker test showed a 99.99% likelihood that he was the father of the child born.
Similar to the Sean Bell case, the mother of the baby, as his representative, joined with Mr. Colon's mother to bring a wrongful death case against the police.
In this case, the defense moved to dismiss the suit on behalf of the baby, saying that he was not a "proper distributee" under EPTL 4-1.2, as he had not been born when his father died, and therefore could not suffer any "pecuniary" (money) loss.
The Appellate Division court ruled that EPTL 4-1.2 provided "[a] non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his parental kindred, if paternity has been established by clear and convincing evidence...{and} the father openly and notoriously acknowledged the child as his own."
The court found that the posthumous genetic marker test was clear and convincing evidence of paternity, and that an affidavit of witnesses to Mr. Colon's acknowledgment of the child as his satisfied the other requirement to inheritance for a non-marital child. Both required elements of proof were satisfied.
The Court also noted that since this case arose, the law had changed, and state law currently would recognize either of the requirements as proof for a non-marital child to inherit from his father under the above statute.
Leave a comment