Bermudez v Spagnoletti

[*1] Bermudez v Spagnoletti 2005 NY Slip Op 51213(U) Decided on July 29, 2005 Civil Court Of The City Of New York, Kings County Nadelson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 29, 2005
Civil Court of the City of New York, Kings County

Englebert Palacio Bermudez, an infant over the age of fourteen by his legal guardian, LUDIVIA CASTELLANOS and LUDIVIA CASTELLANOS, individually, Plaintiffs

against

Margery Cosimo Spagnoletti and ROGELIO CHAVEZ, Defendants



41603/05

Eileen N. Nadelson, J.

This infant compromise order was brought pursuant to the provisions of section 1208 of the CPLR. As part of the order, the attorney for the infant requested that the court waive the appearance of the infant due to hardship.

Section 1208(d) of the CPLR states:

On the hearing, the moving party or petitioner, the infant or incompetent,

and his attorney shall attend before the court unless attendance is excused

for good cause.

The requirement that the infant appear before the court is of special significance in determining the propriety of a settlement in a person injury case. See, McLaughlin, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR 1208. However, neither the CPLR nor the limited number of annotated cases following the above-referenced section specify exactly what might constitute "good cause" sufficient to warrant the excusal of the infant's attendance at court.

Generally, in determining whether good cause has been shown, the court will consider whether the infant's appearance is necessary for a proper determination of settlement, and whether it would constitute a particular or unnecessary hardship if attendance is required. In the Matter of Linda J. v. Wharton, 156 Misc 2d 830, 594 N.Y.S.2d 971 (Queens County 1992) (attendance was required because the injuries were substantial and the excuse for non-attendance was the infant's school schedule, which the court could accommodate). [*2]

In the instant case, the infant suffered cervical and lumbosacral sprains and strains. In the physician's affirmation, the doctor stated that, having examined the infant less than six months prior to the court date, he found that the infant "has recovered from his injuries without residual effects." The accident in question occurred seven years ago, and the amount of the settlement is $12,000.00, which the court believes is adequate compensation for the nature of the injuries sustained.

The reason proffered for the infant's non-attendance is that he now resides in the Dominican Republic with his mother who is not a citizen of the United States and that it would be too costly for the family to return to New York for the hearing. The court notes that the infant is a U.S. citizen and that he is now fifteen years of age. The petitioner for the infant is his aunt who resides in New York.

In determining whether to excuse an infant's appearance at a settlement hearing, the court considered the following factors:

1. The nature and extent of the injuries

2. The permanency of the injuries

3. The degree of recovery attested to by a physician

4. The age of the infant

5. The amount of the settlement in relation to the injuries sustained

6. The nature of the hardship involved in having the infant appear in court.

Under the facts of this case, in which the infant has made a full recovery from injuries that were not substantial and the amount of the settlement appears to be adequate to compensate him for such injuries, the court will excuse the appearance of the infant who no longer resides in this country.

This constitutes the opinion of the court.

Dated: July 29, 2005

__________________________

EILEEN N. NADELSON, J.C.C.