Opinion
No. 37492/06.
2013-01-23
JOHN DOE NO. 4, By and through his natural parents and guardians, and By his Mother and Father, individually, Plaintiffs, v. YESHIVA & MESIVTA TORAH TEMIMAH, INC., Defendant.
Frank V. Floriani, Esq. and Glenn W. Nick, Esq., Sullivan Papain Block McGrath & Cannavo P.C., for Plaintiffs. Avraham Moskowitz, Esq. and M. Todd Parker, Esq., Moskowitz & Book, LLP., for Defendant.
Frank V. Floriani, Esq. and Glenn W. Nick, Esq., Sullivan Papain Block McGrath & Cannavo P.C., for Plaintiffs. Avraham Moskowitz, Esq. and M. Todd Parker, Esq., Moskowitz & Book, LLP., for Defendant.
JACK M. BATTAGLIA, J.
Recitation in accordance with CPLR 2219(a) of the papers submitted on Defendant's motion for “an order approving an infant compromise”:
—Notice of Motion
Affirmation in Support of Motion to Approve an Infant Compromise
Exhibits 1–13
—Affirmation of Frank V. Floriani in Opposition to Defendant Yeshiva & Mesivta Torah Temimah, Inc's Motion to Enforce an Infant Compromise
Exhibits A–I
—Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion to Approve an Infant Compromise
—Affirmation of M. Todd Parker in Further Support of Defendant's Motion to Approve an Infant Compromise
Exhibits 1–2
—Defendant's Memorandum of Law in Further Support of its Motion to Approve an Infant Compromise
—“Submi[ssion] Under Seal”
Plaintiffs were represented by Frank V. Floriani, Esq. and Glenn W. Nick, Esq. of Sullivan Papain Block McGrath & Cannavo P.C. Defendant was represented by Avraham Moskowitz, Esq. and M. Todd Parker, Esq. of Moskowitz & Book, LLP.
Plaintiffs' Complaint alleges that, during the 2003–2004 academic year, the infant plaintiff, “John Doe No. 4,” was sexually abused by a Rabbi Kolko, a teacher at a Jewish day school operated by defendant Yeshiva & Mesivta Torah Temimah, Inc. Causes of action alleging negligence in hiring, retention, and supervision, and breach of fiduciary duty, are asserted on behalf of the infant plaintiff and his parents.
With this motion, Defendant moves for “an order approving an infant compromise.” Although the Notice of Motion does not comply with CPLR 2214(a) in that it does not specify the grounds for the relief demanded, counsel's affirmation in support indicates that the motion is based upon the “procedural framework for seeking the approval of the settlement of an infant's claim” found in CPLR 1207 and 1208 ( see Affirmation in Support of Motion to Approve an Infant Compromise ¶ 46.) Additional rules may be found in the Uniform Civil Rules for the Supreme Court and the County Court § 202 .67 (22 NYCRR § 202.67).
This action is one of several instituted in this court on behalf of infant plaintiffs alleging sexual abuse by Rabbi Kolko. In an action instituted on behalf of “John Doe No. 5” (index no. 268/07), the Complaint is identical to the Complaint here, except that the sexual abuse of the infant plaintiff is alleged to have occurred during the 2004–2005 academic year. Counsel are the same for Plaintiffs in both actions.
With a Decision and Order dated December 14, 2010, this Court denied a motion to consolidate this action with the John Doe No. 5 action. ( See John Doe No. 4 v. Yeshiva & Mesivta Torah Temimah, Inc., 29 Misc.3d 1234[A], 2010 N.Y. Slip Op 52143[U] [Sup Ct, Kings County 2010].) For reasons set forth therein, the Court found “at least a question as to whether counsel should be representing the plaintiffs in both actions,” but also found it unnecessary to decide the question at that time. Since then, new counsel (but the same counsel) have been substituted as counsel for the plaintiffs in both actions. The question, which is relevant to the issues raised on this motion, has yet to be answered.
Defendant's motion is supported by approximately a dozen documents, virtually all of which are inadmissible as evidence. Most importantly, Defendant submits a copy of a Settlement Agreement dated February 15, 2011, in which the names and signatures of the infant plaintiff's parents and the amount of the settlement are redacted. There is no acknowledgment of any of the signatures, nor is the document otherwise authenticated. ( See Prince, Richardson on Evidence § 9–101 et seq. [11th Ed., Farrell]; NYCTL 1998–2 Trust v. Santiago, 30 AD3d 572, 573 [2d Dept 2006] [“A private document offered to prove the existence of a valid contract cannot be admitted into evidence unless its authenticity and genuineness are first properly established”].)
Defendant also submits incomplete and redacted copies of transcripts of the examinations before trial of the infant plaintiff and his father and mother. None of the transcripts is signed by the reporter or the deponent, and none of them is shown to have been submitted to the deponent (or, in the case of the infant, to his parents) for review and signature pursuant to CPLR 3116(a) ( see Martinez v. 123–16 Liberty Ave. Realty Corp., 47 AD3d 901, 902 [2d Dept 2010]; Delishi v. Property Owner [USA] LLC, 31 Misc.3d 661, 666–67 [Sup Ct, Kings County 2011].) Moreover, the infant plaintiff is not shown to have been “swearable.” ( See Carrasquillo v. City of New York, 22 Misc.3d 171, 175–76 [Sup Ct, Kings County 2008].)
Defendant also submits the Affirmations of six individuals (Roy Lubit, Lipa Margulies, Yaakov Applegrad, Shlomo Gottesman, George Weinberger, and Rabbi David Ozeri), who presumably have religious objections to the oath. However, in order for such an affirmation to be admissible, it must be made before a notary public or other authorized official. ( SeeCPLR 2309; Jacov K. v. United Lubavitch, Inc., 30 Misc.3d 1213[A], 2011 N.Y. Slip Op 50060[U] [Sup Ct, Kings County 2011].)
Also submitted are a Forensic Report dated June 30, 2008 by Samuel Klagsbrun, M.D. and a Forensic Evaluation dated April 1, 2009 of Roy Lubit, M.D., Ph.D, neither of which is sworn to, affirmed pursuant to CPLR 2106, or shown otherwise to be admissible as evidence. Both reports are redacted copies, with the names of the infant plaintiff and his parents blocked out.
The only evidence in admissible form submitted by Defendant are an Affidavit of Jeffrey Herman, one of Plaintiffs' former attorneys; an “Affirmation in Support” of the infant plaintiff's father, dated February 27, 2011, without any indication as to what the document is “in Support” of; and an exchange of e-mail communications between Defendants counsel and one of Plaintiffs' former attorneys, which is authenticated prima facie by the affirmation of one of the participants in the exchange.
The admissible evidence on Defendant's motion does not establish prima facie that it is entitled to the relief sought, i.e., “an order approving an infant compromise” ( see Notice of Motion dated August 24, 2012) based upon the Settlement Agreement dated February 15, 2011. The Court strongly suspects, however, that the issue will not go away with a denial of Defendant's motion on evidentiary grounds.
Ordinarily, “[s]tipulations of settlement are favored by the courts and not lightly cast aside,” and “[o]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation.” (Hallock v. State of New York, 64 N.Y.2d 224, 230 [1984];see also Jimenez v. Brenillee Corp., 48 AD3d 351, 352 [1st Dept 2008] [“fraud, duress and mistake”]; Perone v. Nicklas, 99 A.D.2d 484, 486 [2d Dept 1984] [“fraud, duress, or mistake”].) But this is not an ordinary case, if for no other reason than that the stipulation would settle the claim of an infant. “The courts are bound to protect infants, who are their wards” ( Valdimer v. Mount Vernon Hebrew Camps, 9 N.Y.2d 23, 24 [1961] ), and an agreement purporting to settle an infant's claim for personal injuries is unenforceable unless approved by the court pursuant to CPLR 1207 and 1208 ( see id. at 23–24; White v. Daimler Chrysler Corp., 57 AD3d 531, 533 [2d Dept 2008]; Edionwe v. Hussain, 7 AD3d 751, 753 [2d Dept 2004]; Castro v. Boulevard Hospital, 106 A.D.2d 539, 540 [2d Dept 1984].)
The Court notes in the first instance that the Settlement Agreement is unclear as to its most essential term, i.e., the amount for which the infant plaintiff's claim is being settled. The Complaint alleges a claim by the infant plaintiff's parents for “loss of consortium,” “including, without limitation, loss of services and expenses for medical and psychological care.” ( See Complaint, Count III, ¶ 26.) The Settlement Agreement states only the “total amount” that Defendant would pay to “Plaintiffs,” without any allocation as among the infant plaintiff and his parents, or any statement that the parents would waive their respective claims for loss of services. In their respective submissions on this motion, both Plaintiffs and Defendant appear to assume that the “total amount” would be paid in settlement of the infant plaintiff's claim; and, for purposes of this motion, the Court will assume likewise. As discussed below, Defendant seeks to keep the amount of the purported settlement confidential and out of the public court file.
The applicable statute and regulation do not envision an application for judicial approval of settlement of an infant's claim where the approval is sought by a defendant. The statute refers to a petition or motion by the infant's parent or guardian, or other person having legal custody of the infant ( seeCPLR 1207), and requires an affidavit of the infant's representative and, if the infant is represented by an attorney, of the infant's attorney ( seeCPLR 1208[a], [b]; Uniform Civil Rules for the Supreme Court and the County Court § 202.67[d], 22 NYCRR § 202.67[d].) Although the papers may be prepared by a defendant's attorney where the infant is not represented by an attorney ( seeCPLR 1208[f] ), there can be no doubt that the intended petitioner or movant would be the infant's representative.
Nonetheless, there is caselaw, albeit limited, recognizing a defendant's motion for judicial approval of settlement of an infant's claim, although framed as a motion to enforce the settlement. ( See Edionwe v. Hussain, 7 AD3d 751[defendant's cross-motion to motion of plaintiffs' outgoing attorney to enforce settlement]; Shao v. Fugazy Express, 177 A.D.2d 422 [1st Dept 1991] [defendant's cross-motion to plaintiffs' motion to restore to trial calendar]; Caglioli v. Medi–Cab, Inc. of NY, 52 A.D.2d 544 [1st Dept 1976]; Storman v. City of New York, 120 N.Y.S.2d 569 [Sup Ct, Kings County 1953] [pre-CPLR].)
Similarly, the issue arises on a motion of an infant plaintiff's parent or guardian to vacate, or otherwise avoid, a settlement of the infant's claim. ( See Sanchez v. City of New York, 40 AD3d 276 [1st Dept 2007]; Shao v. Fugazy Express, 177 A.D.2d 422;Matter of Yaddow v. Estate of Smith, 130 A.D.2d 838 [3d Dept 1987]; Perone v. Nicklas, 99 A.D.2d 484;Farraro v. Stripekis, 60 A.D.2d 861 [2d Dept 1978]; Bruder v. Schwartz, 260 AD 1048 [2d Dept 1940].)
With one exception ( see Edionwe v. Hussain, 7 AD3d 751), in all these cases the settlement was made in court, or was otherwise previously approved by the court. Broadly stated, where it appeared that the court initially approving the settlement did so on consideration of the information and factors as required by the statute, so that it could be fairly said that “compliance with CPLR 1208 was merely a ministerial matter,” the settlement was enforced over the objection of the infant's parent or guardian. ( See Perone v. Nicklas, 99 A.D.2d at 486–87;see also Sanchez v. City of New York, 40 AD3d at 277;Storman v. City of New York, 120 N.Y.S.2d at 570–73.) In Perone v. Nicklas (99 A.D.2d 484), the court also ruled that “Plaintiffs have failed to demonstrate that the settlement entered into before [the lower court] was the product of fraud, duress, or mistake” ( see id. at 486.)
Where, however, there has not been compliance with CPLR 1207 and 1208, and any court approval was not clearly based on the information and factors as required by the statute, the settlement was not enforced over the objection of the infant's parent or guardian. ( See Edionwe v. Hussain, 7 AD3d at 753–54;Shao v. Fugazy Express, 177 A.D.2d at 422–23;Farraro v. Stripekis, 60 A.D.2d at 861–62;Caglioti v. Medi–Cab Inc. of NY, 52 A.D.2d at 545;see also Matter of Yaddow v. Estate of Smith, 130 A.D.2d at 839;Bruder v. Schwartz, 260 AD at 1048.) In one case, a further hearing before the trial court was ordered. ( See Edionwe v. Hussain, 7 AD3d at 754;see also Mazzuca v. Warren P. Wielt Trust, 59 AD3d 907, 909 [3d Dept 2009].)
In addition to the law generally governing the enforcement of settlement agreements, and the caselaw just cited on the enforcement of a settlement of an infant's claim over the objection of the parent or guardian, there are cases addressing the court's authority to direct a settlement of an infant's claim over the parent's or guardian's objection. The controlling authority is Stahl v. Rhee (220 A.D.2d 39 [2d Dept 1996] ), where the court held that, “[i]n a case where reasonable minds may legitimately differ, the judgment of the infant's natural guardian should prevail,” unless that judgment is “unreasonable, arbitrary, or capricious” ( see id. at 46;see also Caldwell v. Queens–Long Island Med. Group, P .C., 17 AD3d 499, 500 [2d Dept 2005]; Barretta v. NBKL Corp., 298 A.D.2d 539, 539 [2d Dept 2002]; Roman v. Bermudes, 15 Misc.3d 321, 325–26 [Sup Ct, Bronx County 2007]; De Forte v. Liggett & Myers Tobacco Co., 42 Misc.2d 721, 722 [Sup Ct, Kings County 1964] .)
Turning to Defendant's showing on this motion (and putting aside the evidentiary deficiencies noted above), Defendant acknowledges that, within days after signing the Settlement Agreement on February 15, 2011, the infant plaintiff's parents repudiated the settlement, claiming that it was signed under duress. Defendant submits the statements of several persons, including, surprisingly, an affidavit of one of Plaintiffs' attorneys at the time, to dispute the claim of duress. The allegation of the infant plaintiff's parents as to duress involves cultural and religious complexities that a court might well seek to avoid if possible. For example, it is alleged that a rabbi who was Defendant's administrator told the parents that Plaintiffs would “bankrupt” Defendant's yeshiva, that “the Nazis has destroyed” the “yeshiva in Europe” of Defendant's founder's father, and that Plaintiffs “were now doing the same.” ( See Affidavit in Support dated February 27, 2011, ¶ 8.)
In any event, Defendant acknowledges that the father's affidavit and the various other statements submitted by Defendant create a factual dispute, and argues that “a hearing is necessary to resolve this disputed issue of fact to determine whether the settlement agreement should be set aside” ( see Affirmation in Support of Motion to Approve an Infant Compromise [“Defendant's Counsel's Affirmation”] ¶ 49; see also Defendant's Memorandum of Law in Further Support of its Motion to Approve an Infant Compromise at 13 [“there are diametrically opposed factual assertions before the Court regarding whether Plaintiffs entered into the settlement agreement voluntarily or under duress that can only be resolved at an evidentiary hearing”].)
If resolution of the question of duress would be dispositive, a hearing might well be appropriate and advisable, but, as the discussion above should demonstrate, it would not. Even if the Settlement Agreement would otherwise be enforceable, the Court must still determine whether the settlement should be approved. ( See Perone v. Nicklas, 89 A.D.2d at 486–87.)
Moreover, even if enforceable, the Court would give the Settlement Agreement little probative value. First, there was no “change of status” during the few days that passed from the execution of the Settlement Agreement and the parents' repudiation of the settlement. ( See Farraro v. Stripekis, 60 A.D.2d at 862;Bruder v. Schwartz, 260 AD at 1048;Storman v. City of New York, 120 N.Y.S.2d at 572.)
Perhaps more important is the status of Plaintiffs' representation by counsel when the Settlement Agreement was executed. As noted above, in its December 14, 2010 Decision and Order, the Court stated its concern that counsel “may have a conflict of interest in the concurrent representation” of Plaintiffs here and the plaintiffs in the John Doe No. 5 action. As elaborated in that Decision and Order:
“The Court's concern is prompted by the following argument in counsel's affirmation:
If the cases are not consolidated for trial purposes, John Doe No. 5 would be prejudiced. Given the fact that the defendant has asserted in its Response to Plaintiff's Request for Production that it has no insurance to pay any possible verdict, the reality is if John Doe No. 4 is successful in his action (and a verdict was obtained for anything more than a diminimis [ sic ] amount), John Doe No. 4 would be required to force a sale of the properties owned by defendant. If such circumstances transpired, and then John Doe No. 5 was similarly successful in his action, with the subject property sold off, John Doe No. 5's opportunity to collect on any judgment damages would be significantly jeopardized.' (Affirmation in support of motion to consolidate ¶ 10.)
Counsel goes on to assert that [t]he natural parents and guardians of plaintiff, John Doe No. 5, have been appraised of this motion ... [a]nd, they have consented to the consolidation of these two matters.' ( Id. ¶ 12.) Which, of course, begs the question as to whether the parents of John Doe No. 4 consented after being fully informed.
In any event, there is at least a question as to whether counsel should be representing the plaintiffs in both actions. ( See Rules of Professional Conduct, 22 NYCRR § 1200.0, Rule 1.7, Rule 1.8 [effective April 1, 2009]; Disciplinary Rules of the Code of Professional Responsibility, DR5–105, DR5–106, 22 NYCRR § 1200.24, § 1200.25; Matter of New York Diet Drug Litig., 15 Misc.3d 1114[A], 2007 N.Y. Slip Op 50647[U], *7 [if it is likely that a conflict exists, as here where the recovery of one client is at the expense of the recovery of another, full disclosure must be made'].) Indeed, it is at least arguable that a joint trial would prejudice a substantial right of John Doe No. 4. ( See David v. Bauman, 24 Misc.2d 67 [Sup Ct, Nassau County 1960].)”
The Court has since become aware of an opinion of the Committee on Professional Ethics of the New York State Bar Association that addressed the question, “May a lawyer represent two plaintiffs injured in the same occurrence in separate actions against the same defendant where there likely will be insufficient assets available for full satisfaction of all claims.” ( See Committee of Professional Ethics, New York State Bar Association, Opinion No. 639–12/07/92 [28–92].) For the reasons stated in the opinion, and subject to significant qualifications noted, the Committee “answered ... in the negative.” ( See id.)
The Court is not deciding the issue, as it did not decide it two years ago, because the parties have not addressed it, and because determination is not necessary to the Court's decision on the pending motion. It is clear, however, that, when Defendant instituted the settlement negotiations two months after the 2010 Decision and Order, it was aware that it was proceeding under the cloud of, at least, this Court's stated concern. Indeed, the advice received by an infant's parent or guardian from counsel at the time of a settlement can be a factor in determining whether the settlement should be enforced over the parent's or guardian's later wishes. ( See Matter of Yaddow v. Estate of Smith, 130 A.D.2d at 839.)
That concern, moreover, is not merely theoretical here. Defendant's counsel and one of Plaintiffs' former attorneys assert that, after agreement was reached with the parents of infant plaintiff John Doe No. 4, but before the Settlement Agreement was signed, the attorneys met with the parents of infant plaintiff John Doe No. 5 to discuss possible settlement. ( See Defendant's Counsel's Affirmation ¶¶ 38–40; Affidavit of Jeffrey Herman ¶¶ 10–11.) The Court notes also the provision in the Settlement Agreement, “The parties and their counsel agree that the amount paid under this Settlement Agreement shall be confidential, and not disclosed to any person other than accountants, attorney and financial advisors.” ( See Settlement Agreement dated February 15, 2011, ¶ 2 [emphasis added].) Presumably, it was intended that counsel for Plaintiffs here not disclose the amount of the settlement to the parents of John Doe No. 5 during settlement discussions with the latter (although no counsel signed the Settlement Agreement.)
As to the merits of the settlement itself, Defendant appropriately addresses the likelihood of a liability verdict at trial as a factor in considering whether a proposed settlement protects “the infant plaintiff's best interests” ( see Edionwe v. Hussain, 7 AD3d at 753–54;see also Barretta v. NBKL Corp., 298 A.D.2d at 540.) Defendant contends that, “at trial of this matter, the plaintiffs are unlikely to be able to prove that [Defendant] knew or should have known that [the allegedly offending rabbi] was a child molester and thus, there is serious doubt that they will be able to convince a jury that [Defendant] should be held liable for [the rabbi's] actions.” ( See Defendant's Counsel' Affirmation ¶ 50.) No support is provided for this opinion, which Defendant's counsel would be expected to assert, and so, for purposes of assessing the settlement, liability must be accepted.
As to damages, defendant appropriately focuses on the nature and extent of the infant plaintiff's injury, which is certainly one of the most important factors in determining whether the proposed settlement is in the infant's best interests ( see Sanchez v. City of New York, 40 AD3d at 276–77;Edionwe v. Hussain, 7 AD3d at 753;Perone v. Nicklas, 99 A.D.2d at 486–87;Farraro v. Stripekis, 60 A.D.2d at 861.) On this question, the Court notes that the infant plaintiff was nearly 15 years old at the time of the settlement and is now nearly 16 years old, and that “[h]e is the party most vitally interested in the outcome of this lawsuit and, while strictly speaking his consent may not have been required, his wishes should be considered” ( see Cagliotti v. Med–Cab Inc. of NY, 54 A.D.2d at 545.)
Although no medical records are included with Defendant's papers ( seeCPLR 1208[c] ), other than the Forensic Report dated June 30, 2008 of Samuel C. Klagsbrum, M.D., the Court notes Defendant's counsel's assertion, which is not contradicted, that “as of the date of Plaintiffs' deposition, some five years after the alleged abuse, [the infant plaintiff's] parents had never sought professional treatment for the negative effects they claim the alleged abuse had on [the infant plaintiff]” ( see Defendant's Counsel's Affirmation ¶ 13.)
Defendant contends that, “even if, arguendo, the alleged abuse occurred and [Defendant] is found liable, there is virtually no credible evidence in the record that [the infant plaintiff] has suffered or will suffer emotional damage in the future as a result of the alleged abuse.” ( See id. ¶ 4.) Defendant acknowledges the report of Dr. Klagsbrun and his opinion that the infant plaintiff, as of June 30, 2008, was “suffering from a condition of Post Traumatic Stress Disorder stemming from the incident noted in 1st grade, leaving him with excessive shyness, anxiety, isolation and embarrasement [ sic ].” In response, Defendant submits the Forensic Evaluation dated April 1, 2009 of Roy Lubit, M.D., Ph.D., which, as characterized by Defendant, “provide [s] an extensive critique of Plaintiffs' expert report and the conclusion by Plaintiffs' expert that [the infant plaintiff] suffers from PTSD.” ( See id. ¶ 19.)
Defendant also acknowledges that “a jury ultimately [would] decide which expert to credit if this case proceeds to trial,” but fairly contends that “Dr. Lubit's examination of, and conclusions about, [the infant plaintiff] raise serious questions about whether [the infant plaintiff] suffered any damage as a result of [the offending rabbi's] alleged abuse.” ( See id. ¶ 20.) In opposition, Plaintiffs submit a report of Marcia Knight, Ph.D., who evaluated the infant plaintiff on October 11, 2012, and offers a diagnosis of Chronic Post–Traumatic Stress Disorder. Dr. Knight's report contributes to the “serious questions” about the infant plaintiff's likely damages.
On that point, Defendant cites no caselaw or any reported verdict or settlement against which the proposed settlement here might be measured, but the Court has noted Plaintiffs' acknowledgment that “due to the sensitive nature of sexual molestation cases, many settlements and verdicts are sealed from public record.” ( See Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion to Approve an Infant Compromise at 15 n4.) Plaintiffs do cite one reported settlement in a similar case, but the reported details are not sufficient to allow for a fair comparison.
Finally, as to the factors relevant to the advisability of settlement, Defendant submits the separate statement of Dr. Lubit in support of the contention that “going through a trial in this matter could have significant negative consequences for [the infant plaintiff's] emotional well-being, and may ultimately damage him far more than the alleged abuse has damaged him.” ( See Defendant's Counsel's Affirmation ¶ 24.)
It seems almost trite to say that cases involving the alleged sexual abuse of children are among the most challenging, truly in a class of their own. The issues implicate the psychological, emotional, and cultural dispositions of fact-finders, and can reveal differences among the professionals who deal with the issues. Assessments of harm, and the likelihood of a result at trial, are fraught with judgment, not only of the lawyers who pursue these cases, but also, if not especially, of parents, other guardians, and, in appropriate cases, the “infant plaintiff.”
As noted above, because of the circumstances of the settlement as to the role of Plaintiffs' counsel and the almost immediate repudiation by the infant plaintiff's parents, the Court gives little probative value to the fact of the settlement itself. In considering whether settlement should be compelled in this case over the objection of the parents, the appropriate standard to be applied is the “unreasonable, arbitrary, or capricious” standard of Stahl v. Rhee (220 A.D.2d at 46.) Were the parties to present a settlement to the Court at the amount proposed here, it might well be found to be in the infant plaintiff's best interests, but that is not the standard for a settlement contrary to the judgment of the infant plaintiff's parent and counsel.
The Court cannot say on the record presented that the refusal of John Doe No. 4's parents to proceed with the settlement in accordance with the February 15, 2011 Settlement Agreement is unreasonable, arbitrary, or capricious. Nor does it appear that any hearing would be helpful or appropriate. Any hearing would resemble the ultimate trial, requiring the Court to make determinations that, particularly in this type of case, would be better left to a jury if the parties cannot agree.
This action has now been pending more than six years, and two years have passed since the Court raised the question of Plaintiffs' counsel's disqualification. Both Defendant's counsel and Plaintiffs' counsel may believe, or hope, that the question will be resolved by settlement of John Doe No. 4's case or John Doe No. 5's case, or both, but no demonstration has been made to the Court to establish that, and, in the meanwhile, any progress on resolution of the case will be impeded.
As to Defendant's request, in effect, that the Settlement Agreement be sealed, in which Plaintiffs appear to join, the appropriate vehicle for determination would be a motion pursuant to Rule § 216.1 of the Uniform Rules for the New York State Trial Courts ( see22 NYCRR § 216.1.) Before any document or file may be sealed, the court must make a “written finding of good cause, which shall specify the grounds thereof,” and which reflects the court's consideration of “the interests of the public as well as of the parties.” ( See id.)
The Court is aware of the Stipulation and Order Regarding Confidentiality “so ordered” by another justice of this court on March 16, 2007, which provides that “any materials filed with the Court shall be redacted so that the names of, and any personal identifying information concerning, any of the plaintiffs shall not be revealed.” That order does not extend to the fact or amount of any settlement, and the parties seem to acknowledge that.
In compliance with a scheduling order of the Court in connection with this motion, Defendant submitted an unredacted copy of the Settlement Agreement dated February 15, 2011. None of the various bases for the Court's determination of this motion requires that the amount of the proposed settlement be disclosed at this time. The unredacted copy of the Settlement Agreement has been destroyed.
Defendant's motion is denied.