N.Y. Comp. Codes R. & Regs. tit. 22 § 202.67

Current through Register Vol. 46, No. 43, October 23, 2024

Section 202.67 - Infants' and incapacitated persons' claims and proceedings

(a) The settlement of an action or claim by an infant or judicially declared incapacitated person (including an incompetent or conservatee) shall comply with CPLR 1207 and 1208 and, in the case of an infant, with section 474 of the Judiciary Law. The proposed order in such cases may provide for deduction of the following disbursements from the settlement:

(1) motor vehicle reports;

(2) police reports;

(3) photographs;

(4) deposition stenographic expenses;

(5) service of summons and complaint and of subpoenas;

(6) expert's fees, including analysis of materials; and

(7) other items approved by court order.

The order shall not provide for attorney's fees in excess of one third of the amount remaining after deduction of the above disbursements unless otherwise specifically authorized by the court.

(b) The petition or affidavit in support of the application also shall set forth the total amount of the charge incurred for each doctor and hospital in the treatment and care of the infant, or incapacitated person and the amount remaining unpaid to each doctor and hospital for such treatment and care. If an order be made approving the application, the order shall provide that all such charges for doctors and hospitals shall be paid from the proceeds, if any, received by the parent, guardian, or other person, in settlement of any action or claim for the loss of the infant's, or incapacitated person's services; provided, however, that if there be any bona fide dispute as to such charges, the judge presiding, in the order, may make such provision with respect to them as justice requires. With respect to an incapacitated person, the judge presiding may provide for the posting of a bond as required by the Mental Hygiene Law.

(c) If the net amount obtained for the infant, or incapacitated person in any approved settlement does not exceed the amount set forth in CPLR 1206(b), the court may permit it to be paid pursuant to CPLR 1206(b). The court may order in any case that the money be deposited or invested pursuant to CPLR 1206(c) or held for the use and benefit of the infant, or incapacitated person as provided in CPLR 1206(d) and CPLR 1210(d).

(d) The affidavit of the attorney for a plaintiff, in addition to complying with CPLR 1208, must show compliance with the requirements for filing a retainer statement and recite the number assigned by the Office of Court Administration, or show that such requirements do not apply.

(e) Applications for approval of an infant's or incapacitated person's compromise shall be made returnable before the judge who presided over the compromise or, where the agreement was reached out-of-court, before the appropriate assigned judge.

(f) A petition for the expenditure of the funds of an infant shall comply with CPLR article 12, and also shall set forth:

(1) a full explanation of the purpose of the withdrawal;

(2) a sworn statement of the reasonable cost of the proposed expenditure;

(3) the infant's age;

(4) the date and amounts of the infant's and parents' recovery;

(5) the balance from such recovery;

(6) the nature of the infant's injuries and present condition;

(7) a statement that the family of the infant is financially unable to afford the proposed expenditures;

(8) a statement as to previous orders authorizing such expenditures; and

(9) any other facts material to the application.

(g) No authorization will be granted to withdraw such funds, except for unusual circumstances, where the parents are financially able to support the infant and to provide for the infant's necessaries, treatment and education.

(h) Expenditures of the funds of an incapacitated person shall comply with the provisions of the Mental Hygiene Law.

(i) The required notice of the filing of a final account by an incapacitated person's guardian and of a petition for settlement thereof shall show the amounts requested for additional services of the guardian and for legal services. Prior to approving such allowances, the court shall require written proof of the nature and extent of such services. Where notice is given to the attorney for the Veteran's Administration, if the attorney for the Veteran's Administration does not appear after notice, the court shall be advised whether the Veteran's Administration attorney has examined the account and whether he objects to it or to any proposed commission or fee.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 202.67