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