ARTURO RUVALCABA v. GENERAL CONTRACTORS CORP 3428 BEDFORD LLC (2025)

MEMORANDUM AND ORDER

Arturo Ruvalcaba, as administrator for the Estate of Marco Jeancarlo Santiago Cervantes (“Plaintiff”), initiated this action on November 4, 2021, against Defendants M.N.C. General Contractors Corp. (“M.N.C.”) and 3428 Bedford LLC (“3428 Bedford”). (Compl., ECF No. 1.) The parties now seek approval of a settlement reached on behalf of the decedent. (Mot. for Approval of Wrongful Death Compromise Order and Allocation of Net Settlement Proceeds (“Mot.”), ECF No. 100.) Further, Barbara Zuleica Cervantes Ulloa, the decedent's biological mother, has requested that the entire settlement proceeds be awarded to her. (Letter, ECF No. 104; Zuleica Ulloa Decl., ECF No. 106; Dalley Decl., ECF No. 107.) As discussed herein, the settlement is approved.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

As alleged in the complaint, Marco Jeancarlo Santiago Cervantes (“Decedent”) died while working on a construction project in Brooklyn, New York, on November 11, 2019. (Compl., ECF No. 1, ¶ 1.) Plaintiff initiated this action, on behalf of Decedent's estate (the “Estate”), on November 4, 2021, alleging negligence, violations of New York Labor Law §§ 200, 240(1), and 241(b), and wrongful death. (See generally id.) Defendant 3428 Bedford filed an answer and asserted a crossclaim against Defendant M.N.C. on December 2, 2021, and then filed a third-party complaint against RVM Carpentry Inc. (“RVM Carpentry”) on December 22, 2021. (Answer & Cross-cl., ECF No. 8; Third Party Compl., ECF No. 11.) Defendant M.N.C. filed an answer to the complaint and asserted a crossclaim against 3428 Bedford on January 3, 2022. (Answer & Cross-cl., ECF No. 12.)

The parties proceeded with an initial conference and commenced discovery. (See Feb. 8, 2022 ECF Min. Entry & Order.) After some discussion between the parties regarding insurance and coverage, RVM Carpentry appeared in the action and filed an answer as a third-party defendant. (Answer, ECF No. 28; Status Report, ECF No. 22; Status Report, ECF No. 26.) After discovery was closed, the parties briefed summary judgment. (Status Report, ECF No. 47; Sept. 18, 2023 ECF Order; see ECF Nos. 61–77.) On September 30, 2024, the Honorable Orelia E. Merchant denied Plaintiff's motion for summary judgment, granted in part and denied in part M.N.C.’s summary judgment motion, and granted in part and denied in part 3428 Bedford's summary judgment motion. (Mem. & Order, ECF No. 80.) On December 19, 2024, the parties filed their proposed trial order. (Proposed Pretrial Order, ECF No. 84.) Judge Merchant scheduled the trial to commence on April 7, 2025. (Dec. 27, 2024 ECF Scheduling Order.)

On February 6, 2025, the parties filed a letter representing that the parties had scheduled a private mediation before George Silver, retired New York State Supreme Court Justice. (Joint Letter, ECF No. 87.) On March 12, 2025, the parties submitted a status report representing that the parties have agreed to settle and requesting that the parties be given leave to file a motion for a wrongful death compromise order. (Mot. for Leave to File, ECF No. 96.) In response, Judge Merchant adjourned the parties’ pretrial conferences and jury trial, and she directed the parties to file a status report on March 19, 2025, advising the Court of the status of settlement. (Mar. 12, 2025 ECF Order.)

On March 19, 2025, Plaintiff filed a status report indicating that counsel was still in the process of determining the amounts of outstanding liens and locating Decedent's father. (Status Report, ECF No. 97.) Judge Merchant directed Plaintiff to file another status report on April 2, 2025. (Mar. 20, 2025 ECF Order.) In its April 2, 2025 status report, Plaintiff stated that the application for a wrongful death compromise would be filed by April 10, 2025, and that Plaintiff had ascertained Decedent's father's name and address in Mexico. (Status Report, ECF No. 99.)

Plaintiff filed its motion for a wrongful death compromise order on April 10, 2025. (See Mot., ECF No. 100.) The next day, Plaintiff filed a certificate of service representing that Plaintiff served copies of the motion on Defendants, Ms. Zuleica Ulloa, and the New York Department of Social Services. (Certificate of Service, ECF No. 101.) Judge Merchant subsequently referred the motion to the undersigned Magistrate Judge. (Apr. 11, 2025 ECF Order Referring Mot.)

On May 16, 2025, the Court issued an order noting that the proposed compromise order did not include the total balance of the settlement to be provided to the Estate, nor did it state the amount of Decedent's Medicare lien. (May 16, 2025 ECF Order.) The Court directed the parties to ascertain the Medicare lien amount so that they may provide a completed proposed compromise order for the Court's review and to file a status report by June 16, 2025, with an update. (Id.) On May 17, 2025, Plaintiff's counsel filed a supplemental declaration representing that the New York City Department of Social Services and Division of Liens and Recovery had confirmed that Decedent did not have a Medicare lien, and filed a revised proposed wrongful death compromise order. (Carboy Suppl. Decl., ECF No. 103; Revised Proposed Compromise Order, ECF No. 103-3.)

On May 30, 2025, Ms. Zuleica Ulloa filed a letter and declarations partially opposing the application for a wrongful death compromise order. (Letter, ECF No. 104; Zuleica Ulloa Decl., ECF No. 106; Dalley Decl., ECF No. 107.) Ms. Zuleica Ulloa requested that she receive the entirety of the distribution of the settlement proceeds, rather than having the proceeds be split between her and Decedent's father, Marco Antonio Santiago Ortiz. (Zuleica Ulloa Decl., ECF No. 106, ¶¶ 9–10; Dalley Decl., ECF No. 107, ¶¶ 6–8.)

On July 2, 2025, the Court scheduled a motion hearing for July 24, 2025. (July 2, 2025 ECF Scheduling Order.) The Court also directed Plaintiff to serve a copy of the scheduling order and Ms. Zuleica Ulloa's materials on Mr. Santiago Ortiz via email and via any contact information that was in Ms. Zuleica Ulloa's possession by July 11, 2025. (Id.) The Court further directed Plaintiff to file a letter “explaining how Plaintiff's efforts to serve Mr. Santiago Ortiz satisfy the relevant requirements under E.D.N.Y. Local Civil Rules and New York law” by July 11, 2025. (Id.) Plaintiff filed a certificate of service representing that Mr. Santiago Ortiz was served with the Court's scheduling order and Ms. Zuleica Ulloa's materials via mail and via email on July 5, 2025, and filed an additional certificate of service representing that Plaintiff emailed the video link for the hearing to Mr. Santiago Ortiz's email address on July 11, 2025. (Certificate of Service, ECF No. 108; Certificate of Service, ECF No. 109.) Plaintiff also filed a second supplemental declaration on July 11, 2025, representing that Plaintiff's counsel called and left voicemails at Mr. Santiago Ortiz's telephone number, which was provided by Ms. Zuleica Ulloa. (Second Suppl. Decl., ECF No. 110, ¶ 27.)

On July 24, 2025, the Court held a motion hearing. (July 24, 2025 ECF Min. Entry.) Mr. Ruvalcaba, Ms. Zuleica Ulloa, and Mr. Santiago Ortiz appeared at the hearing. (Id.) Counsel for Ms. Zuleica Ulloa reiterated Ms. Zuleica Ulloa's position as to the proposed wrongful death compromise order, representing that Ms. Zuleica Ulloa does not oppose the proposed settlement amount, but she objects to dividing the distribution of the net settlement proceeds between herself and Mr. Santiago Ortiz. (Id.) Mr. Santiago Ortiz stated that the proceeds of the settlement should be solely distributed to Ms. Zuleica Ulloa, as she is Decedent's mother. (Id.)

DISCUSSION

I. Legal Standards

In this district, proposed wrongful death compromise orders are subject to Local Civil Rule 83.2(b) and New York law. See N.Y. Estates, Powers, & Trusts Law (“EPTL”) § 5-4.6; E.D.N.Y. Local Civil Rule 83.2(b). Under Local Civil Rule 83.2(b), in a wrongful death action, the Court “must apportion the avails of the action and must approve the terms of any settlement,” and “must approve an attorney's fee only upon application in accordance with the provisions of the New York State statutes and rules.” E.D.N.Y. Local Civil Rule 83.2(b).

On a motion for wrongful death compromise approval, the Court must determine whether the settlement is “fair, reasonable and adequate by comparing the terms of the compromise with the likely rewards of litigation.” Moises v. Riverbank Rest. LLC, No. 17-CV-9943 (SDA), 2018 WL 7356770, at *1 (S.D.N.Y. Dec. 21, 2018) (quotation marks omitted); see also Cai v. Cream-O-Land Dairies, LLC, No. 20-CV-1053 (LB), 2021 WL 7210785, at *1 (E.D.N.Y. Jan. 25, 2021) (quotation marks omitted). “A strong presumption exists that a settlement is fair and reasonable where ‘(i) the settlement is not collusive but was reached after arm's length negotiation; (ii) the proponents have counsel experienced in similar cases; [and] (iii) there has been sufficient discovery to enable counsel to act intelligently.’ ” Ratcliffe v. Pradera Realty Co., No. 05-CV-10272 (JFK), 2008 WL 801498, at *1 (S.D.N.Y. Mar. 25, 2008) (quoting Ross v. A.H. Robins Co., 700 F. Supp. 682, 683 (S.D.N.Y. 1988)).

II. Settlement Amount

The proposed settlement seeks to settle Plaintiff's claims for $1,500,000,¹ with attorneys’ fees of $482,150.00 and costs of $53,548.18, and a payment of $48,000.00 to Mr. Ruvalcaba for his services as the Estate administrator. (Revised Proposed Compromise Order, ECF No. 103-3.) The remaining $916,301.82 is to be paid to the distributee(s) of the Estate. (Id.) Plaintiff's counsel reports that there are no healthcare or any other liens asserted on the recovery reached in this action. (Suppl. Decl., ECF No. 103, ¶ 3.)

Plaintiff's counsel represents that he recommended settlement because settlement concludes this matter in the near term, and is therefore “advantageous.” (Carboy Decl., ECF No. 100-1, ¶¶ 21, 26.) Counsel notes that, “[u]nder New York law, “there are only two components in a wrongful death claim: A) economic loss; and B) conscious pain and suffering sustained before a decedent expires”; any damages award from a jury would not compensate for “[g]rief and the emotional distress of surviving family members, like [D]ecedent's mother.” (Id. ¶ 29.) Further, counsel states that the settlement fully compensates Plaintiff's claimed economic loss, and reasonably compensates for the conscious pain and suffering claim, which would be difficult to prove at trial. (See id. ¶¶ 30–40.)

Mr. Ruvalcaba, who was “closely involved” in the private mediation proceedings, also believes the settlement is fair and reasonable. (Ruvalcaba Decl., ECF No. 100-2, ¶¶ 16–17, 24.) Mr. Ruvalcaba notes that “a trial of this case would be upsetting and uncertain in its outcome,” and acknowledges that “there are never any guarantees at a trial, and that any favorable outcome would be subject to post-trial applications (arguments) and even appeals.” (Id. ¶¶ 25–26.) At the July 24, 2025 hearing, Plaintiff's counsel and Mr. Ruvalcaba both affirmed that they believe the settlement is fair and reasonable. (See July 24, 2025 ECF Min. Entry.)

As a threshold matter, the Court finds that the settlement agreement is the product of arm's-length negotiation. Plaintiff was represented by able and experienced counsel throughout this case, and the parties engaged in substantial discovery, which allowed for informed, intelligent decisions as to settlement, as well as summary judgment motion practice, motions in limine briefing, and extensive settlement discussions. (See Carboy Decl., ECF No. 100-1, ¶¶ 52–81.) See Ratcliffe, 2008 WL 801498, at *1.

Furthermore, as discussed at the July 24, 2025 hearing, the proposed wrongful death compromise order ensures that the Estate is paid a substantial sum for damages recoverable in a wrongful death action under New York Law, while avoiding the litigation risks that a jury verdict could be in an amount less than what will be received as a result of the settlement. (July 24, 2025 ECF Min. Entry.) Plaintiff's counsel represented that there were significant litigation risks in this case, including the speculative nature of Decedent's fall, as Judge Merchant noted in her summary judgment opinion, and the lack of record establishing that Decedent experienced any conscious pain and suffering. (Carboy Decl., ECF No. 100-1, ¶¶ 28–29, 33; see also Mem. & Order, ECF No. 80, at 15–16.)

In light of the settlement being the result of arm's-length negotiation by experienced counsel, and the parties having conducted sufficient discovery, the Court finds the proposed settlement to be fair, reasonable, and adequate.

A. Distribution of the Estate Proceeds

Decedent did not have a partner or any children when he passed away; therefore, the potential distributees of the Estate are his parents, Ms. Zuleica Ulloa and Mr. Santiago Ortiz. (See Carboy Decl., ECF No. 100-1, ¶ 7.) Ms. Zuleica Ulloa requests that the Court award her the entirety of the net proceeds from the settlement, as she is Decedent's “sole parent entitled to” the settlement, and Mr. Santiago Ortiz abandoned Decedent. (Zuleica Ulloa Decl., ECF No. 106, ¶¶ 9, 18; Dalley Decl., ECF No. 107, ¶ 8.) According to Ms. Zuleica Ulloa, she provided emotional and financial support to her son, including paying for his college tuition, and they lived together until he moved to New York. (Zuleica Ulloa Decl., ECF No. 106, ¶¶ 4, 11, 12.) Decedent's father, she represents, did not participate in any parenting, provided no financial support, and had met Decedent only once, when Decedent was an adult. (See id. ¶¶ 5, 7; see also Carboy Decl., ECF No. 100-1, ¶ 9.) At the motion hearing, Mr. Santiago Ortiz did not seek a share of the settlement and stated on the record that Ms. Zuleica Ulloa should receive the total net settlement proceeds. (July 24, 2025 ECF Min. Entry.)

Under the EPTL, the Court may determine the distributive shares of an estate; as is relevant here, the Court may decide whether a parent is disqualified from receiving any distributive share in a decedent child's estate. EPTL § 5-4.4(a)(2).

No distributive share in the estate of a deceased child shall be allowed to a parent if the parent, while such child is under the age of twenty-one years: (1) has failed or refused to provide for the child or has abandoned such child, whether or not such child dies before having attained the age of twenty-one years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child[.]

Id. § 4-1.4(a)(1). Abandonment may be proven where a parent has not provided “any financial support or active parental involvement.” In re Estate of Gonzalez, 768 N.Y.S.2d 276, 279 (Sur. Ct. 2003) (finding father was not entitled to distributive share); In re Estate of Arroyo, 710 N.Y.S.2d 492 (N.Y. App. Div. 4th Dep't 2000) (collecting cases).

Here, the Court finds that, for the purposes of determining the distributees of the settlement proceeds, the record does not indicate that Mr. Santiago Ortiz was actively involved in Decedent's life or that he provided any financial support when Decedent was a child, nor did he resume his parental relationship and duties after Decedent reached adulthood. See EPTL 4-1.4(a)(1); Gonzalez, 768 N.Y.S.2d at 279. Ms. Zuleica Ulloa has represented that Mr. Santiago Ortiz was not a part of Decedent's life and only met him once. (Zuleica Ulloa Decl, ECF No. 106, ¶¶ 5, 7.) Further, as discussed above, Mr. Santiago Ortiz attended the motion hearing and indicated his support for Ms. Zuleica Ulloa's request that she receive the full distribution of the settlement, as she is Decedent's mother.

The Court therefore finds that Mr. Santiago Ortiz is not entitled to a distributive share of Decedent's estate, and Ms. Zuleica Ulloa should be named as sole distributee.

B. Statutory Commission for Administrator

As part of the settlement, Mr. Ruvalcaba seeks approval of a statutory commission in the amount of $48,000.00. (Carboy Decl., ECF No. 100-1, ¶ 90; Revised Proposed Order, ECF No. 103-3.) As discussed at the hearing, Plaintiff's counsel argues that Mr. Ruvalcaba's statutory commission should be determined under New Jersey state law, as he was appointed as administrator by the Surrogate's Court of Hudson County, New Jersey, and because Decedent was a citizen of New Jersey at the time of his death. (See Carboy Decl., ECF No. 100-1, ¶ 54; Ruvalcaba Decl., ECF No. 100-2, ¶¶ 1, 3; see also July 24, 2025 ECF Min. Entry.) Under the relevant New Jersey statute, administrator commissions are based upon the total value of the estate. See N.J.S.A. 3B:18-14. The commissions are as follows: “5% on the first $200,000 of all corpus received by the fiduciary; 3.5% on the excess over $200,000 up to $1,000,000; [and] 2% on the excess over $1,000,000.” See id.²

Mr. Ruvalcaba was appointed as Estate administrator on May 27, 2021; he was a childhood and lifelong friend of Decedent. (Carboy Decl., ECF No. 100-1, ¶ 14.) There is nothing in the record to rebut Mr. Ruvalcaba's claim for a commission, and the requested amount is in line with the relevant New Jersey statutory provision. The Court therefore finds that Mr. Ruvalcaba is entitled to his commission of $48,000.00.

III. Attorney's Fees

The Local Civil Rules and New York law grant courts the authority to determine the reasonableness of attorney's fees. Attorney's fees equal to one-third of the net settlement amount are generally considered reasonable. See Ratcliffe, 2008 WL 801498, at *2; Moises, 2018 WL 7356770, at *2; see also Dullard v. Berkeley Assocs. Co., 606 F.2d 890, 896 n.5 (2d Cir. 1979) (noting that “in a wrongful death suit contingent fees of as much as one-third of the net recovery (after deducting expenses) are presumptively permissible”).

In this case, pursuant to Plaintiff's one-third contingency retainer agreement, Plaintiff's counsel seeks $53,548.18 ³ in costs, and $482,150.00 in fees, totaling $535,696.18. (Revised Proposed Order, ECF No. 103-3; Carboy Decl., ECF No. 100-1, ¶¶ 83–85.) This fee amount is slightly less than one-third the net settlement amount. (Carboy Decl., ECF No. 100-1, ¶ 85.)

Mr. Carboy states that he provided extensive legal services throughout the course of litigation, including investigation, collection of Decedent's parents’ information, collection of hospital and medical records and reports, research, interrogatories, fact witness and expert depositions, summary judgment practice, trial preparation, motions in limine briefing, settlement negotiations, and preparation of the wrongful death compromise order. (Id. ¶¶ 52–81.) Mr. Carboy has also provided a breakdown and receipts for the requested reimbursements of costs.⁴ (Record of Expenses, ECF No. 100-8.)

The Court finds that Plaintiff's counsel's proposed one-third contingency fee is reasonable and in compliance with applicable New York law and Local Civil Rule 83.2. See Ratcliffe, 2008 WL 801498, at *2; Moises, 2018 WL 7356770, at *2. Further, the Court finds that “the expenses for which Plaintiffs seek reimbursement, including filing fees and deposition and expert costs, are standard litigation expenses.” Moises, 2018 WL 7356770, at *2.

CONCLUSION

For the foregoing reasons, the motion (ECF No. 100) is granted and the proposed wrongful death compromise order (ECF No. 103-3) is approved, with Ms. Zuleica Ulloa being named as the sole distributee of the Estate. The parties are directed to file a stipulation of dismissal by August 28, 2025.

SO ORDERED.

FOOTNOTES

1.   The $1,500,000 settlement amount will be paid by M.N.C. ($500,000), and RVM ($1,000,000). (Revised Proposed Compromise Order, ECF No. 103-3.)

2.   In line with the statutory commissions, Mr. Ruvalcaba's $48,000 commission amount is broken down as follows: “5% on the first $200,000 ($10,000); 3.5% on the next $800,000 ($28,000); and 2% on the remaining recovery of $500,000 ($10,000).” (Ruvalcaba Decl., ECF No. 100-2, ¶ 12.)

3.   Costs in this case totaled $62,548.18, but the insurance carriers of M.N.C. and RVM reimbursed Plaintiff's counsel for the deposition appearances of Plaintiff's experts, which reduced the total requested expenses by $9,000. (Carboy Decl., ECF No. 100-1, ¶ 83.)

4.   Additionally, Mr. Carboy has agreed to waive reimbursement for items such as “photocopying, special printing, delivery, postage, travel, and other overheard,” as well as any online research charges and most PACER charges. (Carboy Decl., ECF No. 100-1, ¶ 84.)

TARYN A. MERKL UNITED STATES MAGISTRATE JUDGE