Roberto Arroyo, Respondent-Appellant. v. << (2000)

 The Surrogate properly excluded respondent from receiving any share of the settlement proceeds attributable to the wrongful death of his child.   Pursuant to EPTL 4-1.4(a), “No distributive share in the estate of a deceased child shall be allowed to a parent who has failed or refused to provide for, or has abandoned such child while such child is under the age of twenty-one years”.   Disqualification under EPTL 4-1.4 precludes one from sharing in wrongful death proceeds under EPTL 5-4.1 (see, Turano, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 17B, EPTL 5-4.1, at 305).   Here, the record establishes that respondent failed or refused to support his child for 2 1/212 years prior to her death (see, Matter of Wright, 271 A.D.2d 201, 706 N.Y.S.2d 35;  Matter of Baecher, 198 A.D.2d 221, 603 N.Y.S.2d 504, lv. denied 83 N.Y.2d 751, 611 N.Y.S.2d 133, 633 N.E.2d 488;  Matter of Brennan, 169 A.D.2d 1000, 1000-1001, 565 N.Y.S.2d 277;  Matter of Daniel, 275 App.Div. 890, 90 N.Y.S.2d 26).   Moreover, the record establishes that respondent abandoned his child by neglecting or refusing to fulfill the natural and legal obligations of training, care and guidance owed by a parent to a child (see, Matter of Downs, 157 Misc. 293, 284 N.Y.S. 270;  Matter of Schiffrin, 152 Misc. 33, 34, 272 N.Y.S. 583;  Matter of Guilianelli, 7 Misc.2d 171, 166 N.Y.S.2d 206;  see also, Matter of Davis, 142 Misc. 681, 691, 255 N.Y.S. 416).   Contrary to his contention, respondent was not mentally incompetent to such a degree as to excuse his abandonment of his child and failure to support her (cf., Matter of Musczak, 196 Misc. 364, 366-367, 92 N.Y.S.2d 97;  Matter of Barth, 176 Misc. 310, 311, 26 N.Y.S.2d 409;  Matter of Zounek, 143 Misc. 827, 828, 258 N.Y.S. 665).

Order unanimously affirmed without costs.

MEMORANDUM: