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MATEO v. CITY OF NEW YORK

United States District Court, S.D. New York


June 21, 2004.

JOSE MATEO and SANTA MATEO, individually and as Parents and Natural Guardians of ALBA MATEO, EZEQUIAS MATEO, and ESMIRNA MATEO, infants under the age of eighteen years, Plaintiffs,
v.
THE CITY OF NEW YORK, ET AL., Defendants.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

TO THE HONORABLE JOHN G. KOELTL, UNITED STATES DISTRICT JUDGE

The above-captioned action was brought pursuant to 42 U.S.C. § 1983 by Jose Mateo and Santa Mateo, individually and as the parents and natural guardians of their three infant children, Alba Mateo, Ezequias Mateo, and Esmirna Mateo. Through the action, the plaintiffs sought redress for violations of their First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights that they alleged were committed by the defendants.

  The parties to the action reached a negotiated disposition which involved, among other things, the withdrawal of the claims made by the parents on behalf of the infant plaintiffs and the payment of a sum certain to the infants' parents. Since the settlement agreement provides that the claims made by the infant plaintiffs would be withdrawn, your Honor referred the matter to me to ensure that the procedures found in Article 12 of New York's Civil Practice Law and Rules, as they relate to the settlement or compromise of an action or claim made by an infant, had been followed.

  On June 15, 2004, a proceeding was held, pursuant to Local Civil Rule 83.2 of this court. Local Civil Rule 83.2 provides the following:

* * *
(1) An action by or on behalf of an infant or incompetent shall not be settled or compromised, or voluntarily discontinued, dismissed or terminated, without leave of the court embodied in an order, judgment or decree. The proceeding upon an application to settle or compromise such an action shall conform, as nearly as may be, to the New York State statutes and rules, but the court, for cause shown, may dispense with any New York State requirement.
(2) The court shall authorize payment to counsel for the infant or incompetent of a reasonable attorney's fee and proper disbursements from the amount recovered in such an action, whether realized by settlement, execution or otherwise and shall determine the said fee and disbursements after due inquiry as to all charges against the fund.
(3) The court shall order the balance of the proceeds of the recovery or settlement to be distributed as it deems may best protect the interest of the infant or incompetent.
  Although the applicable Local Civil Rule does not impose upon the court a requirement that it follow New York's statutes and rules precisely, see Neilson v. Colgate-Palmolive Company, 199 F.3d 642, 655 (2d Cir. 1999), prior to the date on which the proceeding was held, the parents of the infant plaintiffs and their counsel were directed to submit to the Court declarations that comport with the requirements of section 1208 of New York's Civil Practice Law and Rules and section 202.67 of the Uniform Civil Rules of the Supreme Court and the County Court. The declarations submitted in response provide, inter alia: the nature and extent of the infants' damages; the nature of the claims made by the infants' parents individually; the terms of the proposed settlement; the rationale for the settlement; and the services rendered by the plaintiffs' counsel. The submissions also establish that the retainer agreement entered into by the plaintiffs and their counsel has been filed with the relevant state administrative agency. Furthermore, at the proceeding referenced above, inquiries were made of the infants' parents to ensure that they understood fully the effect of withdrawing the claims made on behalf of the infants and to confirm that the determination to withdraw those claims was made knowingly and voluntarily. Although the infants' claims are being withdrawn and, therefore, the infants will not recover anything directly from the defendants, the infants' parents are receiving a sum certain for their individual claims and the Court was informed by the parents that this sum will be used, in part, for the benefit of the infants.

  RECOMMENDATION

  Based upon the submissions made by the parents of the infant plaintiffs and their counsel, and the record generated during the proceeding held on June 15, 2004, it is recommended that the stipulation and order of settlement and dismissal previously submitted to the court by the parties be endorsed by your Honor.

  FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable John G. Koeltl, United States District Judge, 500 Pearl Street, Room 1030, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Koeltl. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

20040621

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