United States District Court, N.D. New York
TRACY CANNON, as Administratrix of the Estate of MARK CANNON, Jr., Plaintiff,
CORRECTIONAL MEDICAL CARE, INC, et al., Defendants.
OFFICES OF ELMER ROBERT KEACH, III, P.C. COUNSEL FOR
BERNSTIEL COUNSEL FOR CMC DEFENDANTS 
THUILLEZ, FORD LAW FIRM COUNSEL FOR DEFENDANT COOGAN
SCOLAMIERO LAW FIRM COUNSEL FOR DEFENDANT GOYER
COUNTY ATTORNEY'S OFFICE COUNSEL FOR ALBANY COUNTY
RYAN LAW FIRM COUNSEL FOR ALBANY COUNTY DEFENDANTS
R. KEACH, III, ESQ MARIA K. DYSON, ESQ. CATHLEEN KELLY REBAR,
ESQ. MOLLY C. CASEY, ESQ. THOMAS A. CULLEN, ESQ. TRACY A.
MURPHY, ESQ. JOHN W. LIGUORI, ESQ.
DECISION AND ORDER
J. STEWART UNITED STATES MAGISTRATE JUDGE
August 30, 2014, Mark Cannon, Jr. died while in the custody
of the Albany County Sheriff. Thereafter, on November 25,
2015, this civil rights lawsuit was commenced by Tracy
Cannon, the Administratrix of the Estate of Mark Cannon, Jr.,
against Correctional Medical Care and its staff, as well as
against the County of Albany and its officials. Dkt. No. 1,
Compl. Nearing the end of a lengthy litigation process, a
settlement conference was held with the Court which
ultimately resulted in a settlement of the case. That
settlement was placed on the record and consisted of a
monetary payment between Correctional Medical Care and the
County of Albany, and Plaintiff, with all other claims and
cross-claims to be discontinued and dismissed. However,
because the action involved the alleged wrongful death of
Mark Cannon, Jr., whose sole distributee is his daughter, a
formal motion to approve the settlement was required pursuant
to New York State Estates, Powers and Trusts Law
(“EPTL”) § 5-4.6 and New York State
Surrogate's Court Procedure Act § 2204.
October 26, 2017, Plaintiffs counsel filed a Motion to
Approve Settlement of Wrongful Death And Civil Rights Action.
Dkt. No. 165. The CMC Defendants are generally in support of
the Motion to Approve Settlement, but object to certain
statements and characterizations made by Plaintiffs counsel
in his Motion papers; question the procedure for the payment
of the settlement and funding of the proposed structure; and
have concerns regarding the scope of the non-disparagement
clause agreed to by the parties. Dkt. Nos. 168 & 172.
Defendants County of Albany, Goyer, and Coogan join in the
request to settle the action. Dkt. Nos. 169, 170 &
regard to the proposed settlement, the Court has considered
the total settlement of $1, 094, 999.99 and finds it to
be an appropriate resolution after considering the merits of
the action. See EPTL § 5-4.6(a). The Court has
dealt extensively with the facts of this case in prior
rulings, in particular in its decision regarding the
Commission of Correction Report, Dkt. No. 136, and
incorporates those facts by reference in this Decision and
Order. Plaintiff has alleged that there was a failure to
provide Mark Cannon, Jr., with proper medical care, and
further, that this failure was part of a broader pattern and
practice implemented by Correctional Medical Care. Dkt. No.
52, Am. Compl. at ¶¶ 15-46; Dkt. No.
165-1, Keach Affirm. at ¶¶ 3-4. The Defendants have
denied the allegations contained in the Amended Complaint,
Dkt. Nos. 65 & 80, and the Albany County Defendants and
the CMC Defendants specifically moved to dismiss, inter
alia, Plaintiff's pattern and practice claim. Dkt.
Nos. 81 & 99. Plaintiff's attorney indicates to the
Court several factors which counsel in favor of settlement,
including the risks of litigation in this action,
particularly as may relate to damages. Keach Affirm. at
¶¶ 7-11. Based upon the foregoing, together with
the opportunity the Court had to discuss the matter privately
with each side (as well as the mother of Mr. Cannon's
daughter) during a lengthy settlement conference, the Court
concludes that the proposed settlement is appropriate under
the facts and circumstances of this case.
also the Court's obligation to review the proposed
attorney's fee requested by Plaintiff's counsel. Mr.
Keach notes that his firm expended $20, 773.24 as
disbursements in this matter, and further notes that his
office spent approximately 800 hours in preparing and
prosecuting the matter. Keach Affirm. at ¶¶ 13
& 16. In addition, Plaintiff Tracy Cannon, on behalf of
the Estate of Mark Cannon, Jr., signed a retainer agreement
authorizing a one-third attorney's fee, calculated
prior to the deduction of expenses. Id. at
¶¶ 5 &13; see also Dkt. No. 165-5. The
Court has reviewed the retainer agreement and finds that it
is in compliance with State law, and in particular with 22
N.Y.C.R.R. § 806.13 of the Appellate Division rules
dealing with contingent fees in claims involving wrongful
death. Accordingly, the Court authorizes reimbursement of
disbursements to Plaintiff's counsel in the amount of
$20, 773.24, and approves an attorney's fee award in the
amount of $364, 635.00, for a total amount of $385, 408.24.
Mr. Keach and his Firm will continue on as representative of
the Estate in order to obtain Surrogate's Court approval.
In that regard, he shall be entitled to reimbursement of
additional expenses from the Estate, but he shall not be
entitled to any further fees for work related to the wrongful
death claim. See Estate of Haag, 43 N.Y.S.3d 870
(N.Y. Sur. Ct. 2016).
the settlement procedure, Plaintiff's counsel is
requesting that any distribution of the settlement proceeds
be approved by the Surrogate's Court. Further,
Plaintiff's counsel is requesting that $650, 000.00 of
the settlement proceeds be utilized to fund a structured
settlement account for the benefit of Mr. Cannon's minor
daughter. Because of tax regulations specifically relating to
the creation of such a structured settlement account,
see Dkt. No. 173, Plaintiff's counsel is
requesting that the $650, 000.00 not be paid until a short
period of time after the Surrogate's Court approves of
the structured settlement and distribution. The remaining
amount of the settlement consists of $385, 408.24 in
attorney's fees and expenses, as well as a residual
amount of $59, 591.75. These amounts would be paid pursuant
to New York's prompt payment law. N.Y. C.P.L.R. §
5003-a. The above-referenced residual amount would be placed
in an account as authorized by the May 24, 2016 decree signed
by the Honorable Vincent Versaci, Schenectady County
Surrogate's Court. Dkt. No. 165-2. The Court agrees that
the procedure outlined above is the correct procedure. L.R.
final issue in dispute concerns the terms of any
non-disparagement agreement between the parties. During the
course of the settlement conference with the Court, the
Defendants requested, and the Plaintiff and her counsel
agreed to, a non-disparagement clause in the settlement. The
specific terms of that clause, however, are in dispute.
Counsel for the CMC Defendants has proposed the following
This Release does not constitute an admission of liability by
the Releasees. The Releasor, and their agents,
representatives, and counsel, agree to strictly maintain the
confidentiality of all the terms and conditions of this
Release and the settlement, and to not disclose any
information relating to any and all terms of this Release and
the settlement to any person or entity.
Releasor and their attorneys agree not to
make any statements, written or verbal, or cause or encourage
others to make any statements, written or verbal, that
defame, disparage or in any way allege, intimate, infer,
suggest or otherwise imply wrongdoing by Releasees related to
the substance of this lawsuit. Releasor acknowledges and
agrees that this prohibition extends to public or private
statements, and statements made during the course of other
and/or future litigation.
Releasor and their attorneys acknowledge and agree that they
will not reference this settlement as evidence of wrongdoing
by Correctional Medical Care, Inc. or any of their current or
former employees, or its successor corporations . . . in any
public or private statements, or in ...