An infant compromise hearing is a proceeding held at the Courthouse with the Judge; the parent; the child; to determine if the proposed settlement by all parties on behalf of the child is adequate compensation. The judge will review the documents on submission by the attorney related to this matter. If the document is e-filed (meaning electronically filed), the chief document will be the proposed Order for the judge to sign. There is no notice of motion.
This is an exparte submission. Meaning that the documents filed, in the Supreme Court level are documents that are primarily reviewed by the judge separate and apart from the requirement that the Defendants or Respondents (persons who are sued), need not be present at the hearing.
Additionally if for some reason the Judge finds that the settlement is problematic requiring correction or even not approved for some reason, then the admissibility of settlement documents are highly questionable, and if attempted to be introduced at trial should be objected to.
The Court requires the attorney to be candid about liability issues. That means the risk of proceeding to trial. What makes the case in simple words appropriate for a settlement? Taking a case to trial is always a risk, and the Court knows this. The Jude recognizes that it is important to do what is in the best interests of the child. The child cannot speak for themselves. In this case a child or more appropriately a minor is any person under 18 years of age and is often an infant minor.
If the minor is 14 years or older, the Court will require an affidavit from the adolescent showing that they also agree with the settlement. As I stated earlier, the key document in Supreme Court (this is the Court where the jurisdictional limit is over $25,000.00 dollars), is the proposed Order, and associated with the proposed Order for the personal injury or medical malpractice settlement is the attorney affirmation that includes information related to a disclaimer of conflicts with any parties or the insurer or others involved in the case, conflicts with the attorney, disclosure of legal fees, expenses, and disbursements, associated with the case; the proposed settlement break down, and if there are any liens or unpaid medical bills, a statement of the work they performed, and if the child and the parent live together and where, and information related to the injuries of the child, and present health per the doctor narrative or note.
Sometimes cases settle early – even before a formal case is filed; often times this is the case with a small dollar value personal injury, or medical malpractice case. Anything under $25,000.00 dollars can be done by a petition filed in Civil Court. This is often a very good way to proceed, as the time, and expenses, associated with the filing in Supreme Court can detract from the final settlement to the child. It should be noted that these cases in Civil Court cannot be E-filed at present time and should be filed with the clerk at the clerk window or by mail with a SASE and the $40 dollar filing fee.
Medical records of the child that are E-Filed should be submitted as a document that only goes to the Court and is redacted as an exhibit. There should also be a doctor affirmation (narrative), that the child has recovered or related to the injuries. Sometimes if the injury is superficial this can be as simple doctor note of exam and a statement the child has fully recovered.
The submission will also include an affidavit from the parent as they have the factual knowledge about the case that the Court requires. The Court will then fix a date for the parent, attorney, and child to appear. Sometimes this is less of a formal process and is held in the chambers of the Court. The Court is concerned that the settlement is fair for the child’s injuries for the child who cannot speak for themselves.
The mother or father will act as a guardian of the child’s funds, and the money will go into a guardianship account, until the child is 18 years old. This Bank should be a savings bank in an interest earning account, in the Borough where the case is heard, and the proposed Order is finalized.
In the end the parent will receive a check on behalf of the child that states them to be the guardian of the child. The attorney will get a separate check. This is all specified in the proposed order. Sometimes the proposed Order will also include a structured settlement for the case, if so this settlement will be broken down into the proposed order that will have to be approved by the Court.
I hope this has given you a better idea of what is involved in an infant compromise hearing, and what to expect in the settlement of your child’s personal injury or medical malpractice case.
Nothing in this blog is intended to form an attorney client relationship or be formal legal advice. You should always consult with an attorney licensed in the State where your case resides for appropriate legal advice related to the facts of your case.
Manuel Moses, Esq.
236 West 26th Street Suite 303
New York, New York 10001
(212) 736-2624 x11
WHAT IS AN INFANT COMPROMISE FOR MY CHILD’S SETTLEMENT OF THEIR PERSONAL INJURY CASE? was originally published on Manuel Moses Law Office – New York, NY | Personal Injury Attorney | Free Consultation (212) 736-2624 Ext. 11