JUDGE BRODERICK
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x ROSARIA CORTES LUSERO, MARIE CRUZ GARCIA and MICHELLE CANER, on behalf of themselves and all others similarly situated,
Plaintiffs, -versusTHE CITY OF NEW YORK,
Defendant. ---------------------------------------------------------------x
PRELIMINARY STATEMENT 1. On a small island off the Bronx lie the remains of approximately one million people,
buried in New York City's potter's field, Hart Island. Though too poor or too unknown at the time of their death to escape mass burial, during their lives the inhabitants of Hart Island were daughters and sons, brothers and sisters, mothers and fathers, grandparents and grandchildren. Family members of those buried on the island wish to visit the gravesites of their loved ones to moum, to pray, or just to be in their presence. New York City, however, bars all such visits, choosing instead to run what should be a sacred site as' a prison compound. This class-action, civil-lights action seeks to end the City's disgraceful policy of barring gravesite visits on Hart Island. 2. New York City has ceded control of Hart Island to its Department of Correction, which uses plison labor to bury the indigent and unclaimed. Though the City states Hart Island is open to the public, the Department of Correction makes it virtually impossible for anyone even to make it on to the ferry that infrequently travels to the island. And for those able to navigate the Department's process and get to the island, they not are

allowed to go beyond a small area near the dock from which there is no view of the burial grounds. 3. Plaintiffs Rosalia Cortes Lusero, Marie Garcia, and Michelle Caner want to grieve for their loved ones buried on Halt Island just as they would had their relatives been buried at any other cemetery. Instead, New York City has robbed them of their ability to properly moum and to express the love and grief they feel for their relatives buried on the island. 4. New York City's policy and practice ofbaning people from visiting the gravesires of family members buried on Hart Island violate the plaintiffs' lights under the First and Fourteenth Amendments to the United States Constitution and sections 3, 6, and 8 of Article I of the New York State Constitution. The plaintiffs seek declaratory and injunctive relief that will allow them to visit the gravesites of their loved ones in a manner appropriate to the grieving process.
PARTIES 5. Plaintiff ROSARIA CORTES LUSERO is a 58-year old woman who currently resides in
New York City with her husband, children, and grandchildren. She wants to visit the Halt Island grave of her daughter, who died shortly before birth in 1995. 6. Plaintiff MARIE CRUZ GARCIA, the eldest daughter of plaintiff Rosaria Cortes Lusero, is a 26-year old woman who currently resides in New York City. She wants to visit the Halt Island grave of the baby sister she lost nearly twenty years ago. 7. Plaintiff MICHELLE CATHERINE CANER is a 34-year old resident of Nashville, Tennessee. She formerly resided in New York City and continues to visit on a regular basis. She wants to visit the Halt Island grave of her father. 8. Defendant the CITY OF NEW YORK ("the City") is a municipal corporation within the
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State of New York. The New York City Department of Correction ("Depmiment of Correction") is a department of the City ofN ew York that controls Hart Island pursuant to the New York City Administrative Code and supervises inmates who conduct burials there. The Department of Correction is also responsible for the care and detention of all prisoners in the custody of the City of New York, as well as the operation of PIis on facilities located in Brooklyn, Manhattan, Queens and the Bronx.
FACTS Plaintiffs Rosaria Cortes Lusero and Marie Garcia 9. Rosalia Cortes Lusero's daughter is one of the infants buried on Hart Island. For the past
nineteen years, defendant has barred Ms. Cortes Lusera and her eldest daughter, Malie Garcia from visiting the baby's final resting place, despite their unrelenting wish to express their love for her. 10. Ms. Cortes Lusero lost her third child in a stillbirth on October 29,1995. That day, a doctor made a fatal attempt to reposition the infant in Ms. Cortes Lusero's womb at Elmhurst Hospital in Queens. As a result of this procedure, the umbilical cord wrapped around the unbom child's neck, ultimately killing her. The doctor did not perform a caesarian, and Ms. Cortes Lusera had to bear a child she already knew was dead. 11. Both Ms. Cortes Lusero and Ms. Garcia have been haunted by this loss ever since. Ms. Cortes Lusero forced hospital staffto take a photograph of her dead child shortly after the birth-s-a picture she has kept to this day. Although Ms. Garcia was just seven years old at the time, she remains profoundly affected by the sense of loss she felt nineteen years ago, when she leamed that the baby sister she had looked forward to meeting would not be coming home to her family.
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12. Hospital stafftold Ms. Cortes Lusero that the City would bury the infant on an island and that she would be able to visit the grave. No one from the City or the hospital gave Ms. Cortes Lusero further information regarding where exactly her daughter would be buried or how she could visit her child's grave.
13. For almost eighteen years, Ms. Cortes Lusero and Ms. Garcia lived with the pain of not knowing where the baby had been laid to rest. Growing up, Ms. Garcia would ask her mother where her baby sister had been buried and how they could visit, and Ms. Cortes Lusero could only respond that she had been buried on an island. It was not until Ms. Garcia began investigating online in 2013 that they finally leamed of the baby's final resting place on Hari Island.
14. At the same time, Ms. Garcia also leamed that the Department of Correction would not allow her or her mother to visit the gravesite. Both women remain determined, however, to visit the grave.
15. Both Ms. Cortes Lusero and Ms. Garcia have thought deeply about what they would like to do when they get to the gravesite. Ms. Cortes Lusero, a lifelong Roman Catholic who was bom and raised in Mexico, wants to exercise her religious beliefs and pray. She wishes to visit accompanied by family members and a Pliest so that they can hold a religious service memorializing her daughter at the gravesite. Ms. Garcia has kept one memento of her little sister all of these years: a pink and pastel blue baby's knit cap meant for the baby that she would not allow her parents to give away. She plans to leave the cap at the gravesite, a small memorial to the sister that she never got to know, but never forgot.
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Plaintiff Michelle Caner 16. Michelle Caner's father was buried on Hart Island after dying homeless and alone four
years ago. Ms. Caner was unable to say goodbye to him during his lifetime but wants to reconnect with him in his death. Unfortunately, the City's policy prevents her from fulfilling this one simple wish. 17. Ersin Nedim Caner, Ms. Caner's father, was an aerospace engineer who had emigrated from Turkey. Although Ms. Caner's parents divorced while she was a toddler, she remained in contact with her father for most of her childhood. Mr. Caner eventually moved to New York City around 1995, where he struggled with substance abuse and soon found himself homeless. Ms. Caner cut off contact with her father at the age of fifteen and leamed of his whereabouts only through family and friends in the years since. 18. In September 2010, Mr. Caner died while being treated at Flushing Hospital in Queens, unbeknownst to anyone in his family. Although Mr. Caner had relatives in New York City, the City failed to identify any next of kin who could have arranged for his burial. No one in Mr. Caner's immediate family would find out that he had died and been buried on Hatt Island until nearly three years later, when Ms. Caner leamed of his death from an entry on a genealogy website in ApliI2013. 19. Immediately after leaming of her father's death, Ms. Caner began contacting city officials in an attempt to find more information. She first called the New York City Morgue and was told that her father had died at Flushing Hospital. The morgue representative she spoke with told her that her father been buried in a "potter's field." After researching potter's fields online, Ms. Caner found that her father had been buried on Hatt Island. 20. Although Ms. Caner wants to visit her father's gravesite, the Department of Correction
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policy ban-ing gravesite visitation has discouraged her from even trying to visit. Ms. Caner understands that she would only be permitted to visit a gazebo at the edge of the island under the Department's current policy and believes that such a visit would not bring her closure. Because a trip to Hart Island would be very difficult for Ms. Caner, both emotionally and logistically, she believes that any attempt to visit the island would be meaningless unless she is permitted to visit her father's actual gravesite to properly moum him there. 21. Ms. Caner still wishes to visit her father's gravesite and wants to be able to visit her father's grave during her regular hips to New York City in the future. While she was unable to connect with him during his lifetime and did not have an opportunity to say goodbye to him before he died, she wants the opportunity to properly moum him now that he has passed away. Hart Island: A Cemetery Without Mourning 22. Hart Island is an uninhabited island located at the westem end of Long Island Sound, northeast of City Island. It is one mile long and a quarter of a mile wide, comprising approximately 131 acres. The island has been owned by New York City since 1868 and is currently a part of the borough ofthe Bronx. While there are numerous buildings on the island from its prior roles as a sanitarium, workhouse, and drug treatment facility, the only persons who currently have regular access to the island are Department of Correction officials and inmates under their supervision. 23. Hart Island currently serves as New York City's only potter's field, a location for the burial of the indigent and of unidentified bodies. Because Hart Island is the only active potter's field in New York City today, most unidentified and indigent individuals who
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pass away in the city are buried on Hart Island. On information and belief, it is the largest indigent burial ground in the United States, one of the largest cemeteries in the nation, and the largest taxpayer-funded cemetery in the world. The Department of Correction, which maintains the Halt Island cemetery and conducts burials there using inmate labor, estimates that approximately one million people are buried on the island. 24. New York City's policy bars family members-and all other members of the publicfrom visiting gravesites on Hart Island. 25. The City's policy baning gravesite visitation conflicts with a long and deeply rooted historical tradition in the United States and nations around the world to allow family members to honor the dead as they see fit, including through gravesite visitation. Ancient cultures, from the Romans to the Greeks, have emphasized the essential importance of burying and honoring the dead. In this country, a number of states have recognized the light to visit a loved one's grave for the purposes of honoring his or her memory, either at common law or by statute. Some of these states have recognized this common law light for over a century. Moreover, Americans have been marking the graves of their loved ones since the early colonial period, so that their final resting places would not be forgotten. Today, it is common for Americans to leave flowers, coins, and other mementos at the graves of loved ones as a way of memorializing the departed. All of these practices are demonstrative ofthe deeply rooted historical tradition of honoring the dead. 26. The policy also prevents the free exercise of religion for those who hold visiting gravesites as a critical component and tenet of faith. Many religions place significant importance on visiting gravesites. In Roman Catholic tradition, family members visit the
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graves of loved ones to pray that their souls will have salvation in the afterlife. One significant manifestation of this tradition is the Mexican Day of the Dead, in which the faithful visit their relatives' graves in order to pray, leave gifts, and decorate the gravesites as an act of remembrance and celebration. Similar customs, which can be traced back to the ancient Christian tradition of All Souls' Day, exist in other Catholic cultures around the world. Muslims believe that visiting the graves of deceased loved ones yields significant benefits, including strengthening one's relationship with the past and directing one to do good deeds. Jewish law exhorts believers to visit the cemetery on holy days and walk on the graves. Jews also observe a centuries-old custom of leaving small stones or pebbles at the graveside to leave lasting evidence of the visit and to ask God to watch over the souls of the departed. Leaving stones at the gravesite is a mitzvah, both a commandment given by God and a good deed. The City's policy barring any form of gravesite visitation prevents members of all of these religions from exercising their sincere beliefs in their faiths. 27. New York City is fully aware that family members wish to visit gravesites on Hart Island but has refused to lift its policy baning such visits. There has been significant press coverage about access to Hart Island, including a November 2013 New York Times article highlighting that family members are not allowed to visit gravesites. The City has also been informed of the access problems by members of the public. Melinda Hunt, the director of the Hart Island Project, a non-profit organization committed to gaining access to the island, has worked for the past twenty years to highlight the problems of visitation to Hart Island. Her activities have included testifying to the New York City Council about the limitations to access while Department of Correction officials were present.
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Finally, prior to filing this lawsuit, the New York Civil Liberties Union ("NYCLU") repeatedly sought to engage the City about changing its policy, all to no avail. The Gazebo Visits Allowed by the Department of Correction Are No Alternative to Gravesite Visits 28. The Department does pennit visits to "an area with a gazebo for reflection" in lieu of access to gravesites, but for family members such visits are no substitute for access to gravesites. The gazebo is located at the edge of the island, far enough from the burial sites that a visitor standing on the gazebo has no view of the graves at all. Such visits do not allow family members to connect with their deceased loved ones in any meaningful way, nor do they comport with historical and religious mouming traditions. On information and belief, visitors to the gazebo are afforded little privacy in their mouming, and instead are searched and accompanied at all times by Department of Correction officers. Visitors to the gazebo are also prohibited from bringing items that mourning family members often use to honor and remember their loved ones, such as flowers or other mementos. 29. For the plaintiffs, only a gravesite visit would be adequate to moum their lost loved ones. Ms. Cortes Lusera wishes to hold a service at the gravesite to memorialize her lost daughter. Ms. Garcia wants to leave a memento at the gravesite. And Ms. Caner wants to say goodbye to her father not just in some random place, but where he will rest for etemity. Being able to stand on the gazebo on Hart Island would do nothing for grieving family members who wish to visit the gravesites of their loved ones. 30. In addition to being inadequate, visits to the gazebo on Hart Island are nearly impossible to obtain. Although the Department of Correction website states that the island is "open to the public," family members who follow the Department's instructions to schedule a
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gazebo visit often find their efforts impeded by a number of bureaucratic hurdles, including disconnected phone calls, unretumed messages, and impolite behavior. Plaintiff Marie Garcia experienced these difficulties firsthand when she called the Department, only to be transferred through a maze of different contacts, put repeatedly on hold, and left unable to schedule a visit. These problems are not isolated and instead appear to reflect standard Department practice. To verify this, a New York University law student working under the supervision of a NYCLU attomey called the Department in September 2014 on multiple occasions to schedule a visit to Hart Island. Although the student followed the Department's instructions to schedule a gazebo visit, the calls were ignored or transferred to someone who could not or would not assist. The student also left a voicemail message requesting a visit, but no Department official has ever responded. The City of New York Can Accommodate Gravesite Visits on Hart Island 31. Upon demand of an attorney who had previously sued over access, the Department of Correction made an exception to its policy and allowed two women to visit the gravesites of their stillborn children in 2014. Both visits occurred without incident. Both women chose to walk to the gravesite and encountered no difficulties in reaching their destinations. GPS navigation made it easy to locate the gravesites, and one of the women reported that a path led directly from the shore to the grave. Furthermore, neither woman encountered or saw imnates during their visits. 32. There is no reason that such visits cannot be extended to others wishing to visit the gravesites of family members. However, even after these exceptions were granted, the official policy baning gravesite visits remains in effect.
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CLASS ALLEGATIONS 33. The plaintiffs bring this class action pursuant to Rule 23(b)(2) of the Federal Rules of
Civil Procedure on their own behalf and on behalf all other persons similarly situated. 34. Specifically, the named plaintiffs seek to represent a certified plaintiff class consisting of
all individuals with a child, parent, sibling, grandparent, grandchild, first cousin, aunt, uncle, niece, or nephew buried on Halt Island. 35. The members of this class are too numerous to be joined in one action. The City buries approximately 1,500 deceased on Hart Island each year, and the Department of Correction estimates that as many as one million people have been buried on the island. Every child, parent, sibling, grandparent, grandchild, first cousin, aunt, uncle, niece, or nephew of a deceased person buried on Hart Island constitutes a member of this class. 36. There are questions oflaw and fact COllli11011 to the class that predominate over questions affecting only individual members, including but not limited to: whether defendant has violated fundamental familial association, free association, free expression, religious expression, and/or privacy rights protected by the United States Constitution and the Constitution of the State of New York in preventing individuals from visiting family members buried on Hart Island. 37. The claims of the named plaintiffs are typical of those of the class members and, by pursuing their own interests, the named plaintiffs will advance the interests of the absent class members. Each member of the class has at least one family member buried on Hart Island, the grave of whom they are unable to freely visit due to significant baniers imposed by the Department of Correction, 38. The class representatives will fairly and adequately protect the interests of the class.
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There are no conflicts of interest between the class representatives and the absent class members, and the class representatives will vigorously prosecute this action on behalf of the class. 39. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 40. The plaintiff class should be certified pursuant to Rule 23(b )(2) of the Federal Rules of Civil Procedure for determination ofliability because defendant has acted on grounds generally applicable to the class, thereby making class-wide declaratory and injunctive relief appropriate.
CAUSES OF ACTION 41. The defendant's actions violate the plaintiffs' lights under the United States Constitution,
including the First and Fourteenth Amendments, and 42 U.S.C. § 1983. 42. The defendant's actions violate the plaintiffs' lights under the New York Constitution,
including sections 3, 6, and 8 of Article I. JURISDICTION AND VENUE
43. This Cami has subject-matter jurisdiction over the plaintiffs' claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3)-(4).
44. Venue is proper pursuant to 28 U.S.c. § 1391(b) in that the plaintiffs' claims arise in the Southem District of New York.
45. This cami has supplemental jurisdiction over all state constitutional claims pursuant to 28 U.S.C. § 1367(a).
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PRAYER FOR RELIEF WHEREFORE, plaintiffs request that this Court: (1) Assume jurisdiction over this matter; (2) Certify this action as a class action, pursuant to Rule 23 of the Federal Rules of Civil
Procedure; (3) Issue a declaratory judgment that the City of New York's current Hart Island visitation
policy violates the United States Constitution and the New York State Constitution; (4) Issue an injunction enjoining the City of New York from enforcing its Hart Island
visitation policy in its current f01111; (5) Issue an order requiring the City of New York to provide reasonable gravesite access to
all members of the class; (6) Award the plaintiffs attomeys' fees and costs; and, (7) Grant any other relief the Court deems appropriate.
Respectfully Submitted,

Dated: December 3, 2014 New York, N.Y.
On the Complaint:
CLARK BINKLEY* DANIEL KACINSKI* CHUN LING JUNINE SO* Law Students New York University School of Law Civil Rights Clinic

New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, N.Y. 10004 (212) 607-3300 cdunn@nyclu.org
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* The plaintiffs and the New York Civil Liberties Union Foundation will be seeking leave of
court to pennit these students to serve as attomeys in this matter pursuant to the Southem District's Plan for Student Practice in Civil Actions.
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 Case 1:14-cv-09533-VSB Document 33 Filed 08/27/15 Page 1 of 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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ROSARIA CORTES LUSERO, MARIE CRUZ :

GARCIA and MICHELLE CANER, on behalf

:

of themselves and all others similarly situated,

:

:

Plaintiffs,

:

:

-versus-

:

:

THE CITY OF NEW YORK,

:

:

Defendant.

:

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14 Civ. 9533 (VSB)

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF JOINT MOTION TO APPROVE CLASS-ACTION SETTLEMENT

Dated: August 27, 2015 New York, N.Y.

CHRISTOPHER DUNN New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, N.Y. 10004 (212) 607-3300 cdunn@nyclu.org

Case 1:14-cv-09533-VSB Document 33 Filed 08/27/15 Page 2 of 8
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF JOINT MOTION TO APPROVE CLASS-ACTION SETTLEMENT
As directed by this Court in an order dated August 17, 2015, and pursuant to Rule 23 of the Federal Rules of Civil Procedure, the plaintiffs submit this memorandum in support of the parties’ joint motion for approval of this putative class-action lawsuit. The plaintiffs respectfully submit that the proposed settlement readily satisfies the legal standards governing approval of class-action settlements because the settlement grants the plaintiffs the relief they sought in the complaint as well as significant additional relief not specifically sought in the complaint.
I. DESCRIPTION OF THE CASE AND THE PROPOSED SETTLEMENT
The plaintiffs in this case, filed in December 2014, are individuals who have relatives buried on Hart Island, which is New York City’s potter’s field and is the final resting place for as many as one million people. In their complaint, the plaintiffs sued New York City and challenged a City policy that barred them from visiting the gravesites of family members buried on Hart Island. The complaint sought injunctive relief that would allow the family members to visit the Hart Island gravesites of their family members and sought attorneys’ fees; it did not seek any monetary damages. See Complaint, Lusero v. City of New York, 14 Civ. 9533 (filed Dec. 3, 2014) (attached as Exhibit B to Affirmation of Christopher T. Dunn (Aug. 26, 2015)).
After a brief extension of time to respond to the complaint, the City filed an answer in January 2015. See Answer, Lusero v. City of New York, 14 Civ. 9533 (filed Jan. 23, 2015) (attached as Exhibit C to Dunn Affirmation). At the same time, it informed the plaintiffs that it
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was interested in attempting to settle the case. See Dunn Affirmation ¶ 4. The parties then engaged in extensive and detailed settlement negotiations for the next several months. See id.
In early July 2015 the parties were able to reach a final agreement about a proposed settlement, a copy of which is attached as Exhibit A to the Dunn Affirmation. The proposed settlement includes the following significant details: 1. The City agreed to provide gravesite visits for a wide range of family members starting in
July 2015. See Proposed Settlement ¶1; Stipulation and Order Regarding Certification of Class Action ¶ 1 (July 23, 2015). Family members will be entitled to bring up to four guests and will be allowed to bring larger groups of guests if they can be accommodated. See id. During their visits, family members or guests can leave mementos at gravesites, including flowers without vases, small stuffed animals, photographs, prayer cards, small flags, and blankets and can also seek to leave other mementos subject to prior approval. See Proposed Settlement ¶ 12. 2. Gravesite visits will take place once a month on a Saturday or Sunday, with the City providing ferry service to Hart Island. Each visitation day will include two two-hour visit periods, during which up to 25 family members and guests will be able to visit, for a total of 50 visitors on each visitation day. See Proposed Settlement ¶¶ 1-4. After the first year of visits is completed, the parties will confer in good faith to determine whether the frequency of visits should be changed in light of the demand for visitation. See id. ¶ 18. 3. The City will operate an on-line and telephone system by which people will be able to schedule visits. See Proposed Settlement ¶¶ 6-7.
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4. The City can require visitors to sign a liability waiver and, in light of the fact that the Department of Correction currently runs Hart Island, can use uniformed DOC employees to act as escorts and has reserved the right to search visitors and to bar electronic devices. See Proposed Settlement ¶¶ 5, 9, 11.
5. The City must maintain a publicly accessible database to allow members of the public to locate persons buried on Hart Island, and that information must be accessible within 30 days of the person’s burial. See Proposed Settlement ¶ 13. It also must post on the DOC website the substance of the proposed settlement. See id. ¶ 16.
6. The City will provide detailed quarterly reports to the plaintiffs about visitation activity (requests and actual visits) each month during the quarter through the first quarter of 2018. See Proposed Settlement ¶ 17.
7. The settlement provides for a procedure by which the parties can attempt to resolve disputes about compliance and by which the plaintiffs can seek judicial relief to enforce the terms of the settlement if necessary. See Proposed Settlement ¶ 20.
8. The settlement remains in place until December 1, 2018. Should the plaintiffs determine at that time that the City is not providing sufficient access to gravesites on Hart Island, the settlement provides that nothing in the settlement bars them from filing a new case. See Proposed Settlement ¶ 22.
9. The proposed settlement provides that the plaintiffs are prevailing parties for purposes of their claim for attorneys’ fees and costs and provides that the parties will work in good faith to resolve that claim once the settlement is approved. See Proposed Settlement ¶ 23.
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10. The proposed settlement includes a stipulation about certification of a proposed class that includes a wide range of family members. See Proposed Settlement ¶ 24.
11. The proposed settlement gives the plaintiffs immediate relief because the City has agreed to be bound by its terms during the period this Court is reviewing it. Should the Court not approve the settlement, it provides that the parties will make good-faith efforts to modify the settlement to allow it to be approved. Finally, if the parties are unable to do so, the settlement provides that it is null and void and that the plaintiffs can proceed with the case. See Proposed Settlement ¶¶ 25-26.
II. THE PROPOSED SETTLEMENT SATISFIES THE STANDARDS OF RULE 23.
The standards governing District Court review of proposed class-action settlements are well-established. As the Second Circuit has explained,
A court may approve a class action settlement if it is fair, adequate, and reasonable, and not a product of collusion. A court determines a settlement’s fairness by looking at both the settlement's terms and the negotiating process leading to settlement. A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery. We are mindful of the strong judicial policy in favor of settlements, particularly in the class action context. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005) (citations and internal quotations omitted). In assessing the fairness of the settlement’s terms, the Second Circuit has identified nine factors to consider: (1) the complexity, expense and likely duration of the litigation, (2) the reaction of the class to the settlement, (3) the stage of the proceedings and the amount of discovery completed, (4) the risks of establishing liability, (5) the risks of establishing damages, (6) the risks of maintaining the class action through the trial, (7) the ability of the defendants to withstand a greater judgment, (8) the range of
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reasonableness of the settlement fund in light of the best possible recovery, (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Id. at 117 (citing City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974)). The Settlement Is Fair- The most important factor in assessing a proposed settlement is whether it is fair to the class members, a determination that ultimately turns on comparing the terms of the settlement against the relief that might have been obtained had the case been litigated, factoring in the uncertainties of litigation (including the prospect of the plaintiffs losing or having relief substantially delayed). Under this standard, the proposed settlement plainly is fair and adequate. As an initial matter, this case does not present the issue that typically looms large in District Court review of proposed class-action settlements: damages for class members. This case sought only injunctive relief, so damages were never at issue and are not now at issue. Rather, this case was entirely about injunctive relief and sought one specific form of injunctive relief, namely the right to visit the gravesites of family members buried on Hart Island. See Complaint at 13 (Prayer for Relief paragraph 5). Given that, assessing the adequacy of the proposed settlement is relatively straightforward because the plaintiffs secured that right in full. Moreover, they secured additional and important relief that went beyond what they specifically sought in their complaint (much less could have obtained through litigation): the right to visit specifically on weekends, with a mix of Saturday and Sunday visitation days; the right to bring guests; the right to leave mementos at gravesites; the right to have a reservation system; the right to have the City maintain an up-to-date database of burials on Hart Island; and the right to ongoing reporting by the City about compliance with the terms of the settlement. Because it
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provides the plaintiffs with the relief they sought as well as additional relief (including immediate implementation as the fairness process proceeds1), the proposed settlement is fair and adequate.
The Negotiation Process Was Fair- As should be apparent from the favorable terms of the settlement for the plaintiffs, the negotiation process here was not infected by any collusion or other improper dealings between counsel for the parties. To the contrary, the negotiations were entirely at arm’s length. See Dunn Affirmation ¶ 4.
As for the experience of counsel, plaintiffs’ counsel the New York Civil Liberties Union has decades of experience litigating civil-rights challenges against New York City, the federal government, and other government defendants, and lead counsel Christopher Dunn has nearly 30 years of civil-rights litigation experience, including serving as lead counsel in other class-action lawsuits. See Dunn Affirmation ¶¶ 6-7. Similarly, the defendant is represented by the New York City Law Department, which vigorously defends City agencies, and the lawyer supervising the City’s defense, Jonathan Pines, has substantial experience and serves as the deputy chief of the General Litigation Division of the Law Department. See Dunn Affirmation ¶ 10.
A final process factor the courts consider is the extent of discovery in the case. Here, settlement discussions started and concluded before any discovery had taken place, but it is important to note that the City admitted in its answer the central fact that might have been disputed: that it had a policy of not allowing gravesite visits. See Answer ¶ 2. Given this, given that this case did not involve any damage claims, and given that the plaintiffs secured more relief
1Gravesite visits have already taken place (on July 18 and August 8). See Dunn Affirmation ¶ 5.
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than the complaint even sought, the lack of discovery in this case does not detract from the fairness of the process that led to the settlement.2
CONCLUSION For all the foregoing reasons, the plaintiffs respectfully urge this Court, following the fairness process prescribed by Rule 23, to approve the proposed settlement in this matter.

Dated: August 27, 2015 New York, N.Y.

Respectfully submitted,
/s/ Christopher Dunn
CHRISTOPHER DUNN New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, N.Y. 10004 (212) 607-3300 cdunn@nyclu.org

2Under the settlement, the parties have agreed the plaintiffs are prevailing parties for purposes of an award of attorneys’ fees and costs under 42 U.S.C. § 1988. All fees and costs recovered from the City will be paid to the NYCLU, which is representing the plaintiffs on a pro bono basis. Neither the NYCLU lawyers representing the plaintiffs in this case nor any other employee of the NYCLU will receive any portion of fees or costs paid to the NYCLU. See Dunn Affirmation ¶ 9.
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 Case 1:14-cv-09533-VSB Document 36 Filed 09/28/15 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------x

ROSARIA CORTES LUSERO, MARIE CRUZ GARCIA, and MICHELLE CANER, on behalf of themselves and all others similarly situated,
Plaintiffs,
- against -
THE CITY OF NEW YORK,

STIPULATION AND ORDER REGARDING CERTIFICATION OF CLASS ACTION
14 CV 9533 (VSB)

Defendant.

------------------------------------------------------------------x

WHEREAS the plaintiffs commenced this action by filing a complaint on behalf

of themselves and of a proposed class of similarly situated individuals, on or about December 3,

2014, alleging that the defendant City of New York (hereinafter “the City”) violated the

plaintiffs’ rights by refusing to permit them to visit the gravesites of family members interred at

Hart Island and seeking injunctive relief on behalf of the putative class;

WHEREAS the City has denied any and all liability arising out of the plaintiffs’

allegations;

WHEREAS the parties have reached a settlement that would benefit the entire

class by allowing gravesite visits to Hart Island and that is now before the Court for approval;

and

WHEREAS the parties agree that the proposed class satisfies the prerequisites for

class certification under Rule 23(a) and Rule 23(b)(2) of the Federal Rules of Civil Procedure

and that the claims alleged by the class would be most appropriately litigated or settled as a class

action; and

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Case 1:14-cv-09533-VSB Document 36 Filed 09/28/15 Page 2 of 4
WHEREAS the parties further agree that, in order to resolve this litigation expeditiously and without needless motion practice and to assure proper administration of the settlement, it is in the parties’ joint interest that the Court certify a class pursuant to Rule 23(b)(2);
IT IS THEREFORE STIPULATED AND ORDERED: 1. A plaintiff class (“Plaintiff Class” or “Class”) is hereby certified, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, defined as:
All parents, step-parents, children (biological or adopted), stepchildren, spouses, siblings, step-siblings, half-siblings, grandparents, grandchildren, uncles, aunts, nephews, nieces, first cousins, second cousins, legal guardians of deceased individuals buried on Hart Island; wards of deceased guardians buried on Hart Island; and domestic partners of deceased individuals buried on Hart Island, who wish to visit the gravesites of said deceased individuals. 2. The proposed class meets the requirements to proceed as a class action under Rule 23(a) because: (1) the number of plaintiffs is so numerous that joinder of all class members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims of the named plaintiffs are typical of those of the class; and (4) the named plaintiffs and their counsel will fairly and adequately protect the interests of the class. 3. As required by Rule 23(a)(1), the class is “so numerous that joinder of all members is impracticable.” The City believes that nearly one million people are buried on Hart Island, and the proposed class of family members of those buried on Hart Island therefore readily satisfies the numerosity requirement of Rule 23. 4. As required by Rule 23(a)(2), there are questions of law or fact common to the class, including but not limited to whether the City’s policy of barring gravesite visits on Hart
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Case 1:14-cv-09533-VSB Document 36 Filed 09/28/15 Page 3 of 4
Island violates the plaintiffs’ rights under the United States Constitution and New York Constitution.
5. As required by Rule 23(a)(3), the plaintiffs’ claims are typical of those of the proposed class. The proposed class members’ claims arise from the same policy and are based upon common legal arguments regarding the City’s alleged liability. All members of the proposed class would benefit from the plaintiffs’ action.
6. As required by Rule 23(a)(4), the plaintiffs will fairly and adequately protect the interests of the proposed class. None of the Plaintiffs has interests antagonistic to the interests of the proposed class because all proposed class members claim to have been harmed by the same alleged wrongs and all will benefit from the relief requested in this action.
7. As required by Rule 23(g)(1), the New York Civil Liberties Union Foundation shall be appointed to serve as class counsel.
8. As required by Rule 23(g)(4), class counsel will fairly and adequately represent the interests of the proposed class. Class counsel has done extensive work in identifying and investigating the claims in this action, have experience in handling class actions and other complex litigation, have considerable knowledge of the applicable law, and have the necessary resources to commit to monitoring the settlement that the parties have submitted to the Court.
9. As required by Rule 23(b)(2), “the part[ies] opposing the class ha[ve] acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The complaint challenges a single policy and practice barring grave site visits to Hart Island that applies to all class members similarly.
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Case 1:14-cv-09533-VSB Document 36 Filed 09/28/15 Page 4 of 4

 
 CCaassee11:1:144-c-cvv-0-099553333-V-VSSBB DDooccuummeennt t2473-1 FFileiledd0027/1/098/1/165 PPaaggee11oof f1100

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------x
ROSARIA CORTES LUSERO, MARIE CRUZ GARCIA, and MICHELLE CANER, on behalf of themselves and all others similarly situated,
Plaintiffs,
- against -
THE CITY OF NEW YORK,
Defendant.
------------------------------------------------------------------x

STIPULATION AND ORDER OF SETTLEMENT
14 CV 9533 (VSB)

WHEREAS the plaintiffs commenced this action by filing a complaint on behalf of themselves and of a proposed class of similarly situated individuals, on or about December 3, 2014, alleging that the defendant City of New York (hereinafter “the City”) violated the plaintiffs’ rights by refusing to permit them to visit the gravesites of family members interred at Hart Island;
WHEREAS the City has denied any and all liability arising out of the plaintiffs’ allegations; and
WHEREAS the parties now desire to resolve the issues raised in this litigation, without further proceedings and without admitting any fault or liability;
IT IS HEREBY STIPULATED AND ORDERED: 1. Effective no later than July 2015, the City shall provide individuals with access to the gravesites of family members buried on Hart Island on at least one weekend day per month (hereinafter “visitation day”), with six Saturday and six Sunday visitation days per year. Subject to Paragraph 15, below, each quarter shall have at least one Saturday and one Sunday

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CCaassee11:1:144-c-cvv-0-099553333-V-VSSBB DDooccuummeennt t2473-1 FFileiledd0027/1/098/1/165 PPaaggee22oof f1100
visitation day. If the City determines that demand warrants a change in the apportionment of Saturday and Sunday visitation days, it may change the schedule with written notice to plaintiffs’ counsel. For purposes of this Stipulation and Order, “family members” shall include, but is not limited to, parents, step-parents, children, step-children, spouses, siblings, step-siblings, halfsiblings, grandparents, grandchildren, uncles, aunts, nephews, nieces, first cousins, second cousins, legal guardians of the deceased, wards of deceased guardians, and domestic partners. Each family member may be permitted to be accompanied on their gravesite visit by up to four other individuals (who do not have to be family members of those buried on Hart Island). Any family member wishing to bring a larger group to a gravesite visit may request such a visit, and the City shall make reasonable efforts to accommodate any such request, subject to Paragraph 8, below.
2. On each visitation day, the City shall provide ferry service to transport visitors to and from Hart Island.
3. On each visitation day, there shall be at least two periods for gravesite visits (hereinafter “visitation periods”), each of which shall last for two hours, including travel time, with the earlier visitation period not starting before 9:00 a.m. Visitors may be required to arrive at the City Island dock thirty minutes before the scheduled visitation period.
4. For each visitation period, the City shall provide for a maximum of twenty-five visitors to visit their requested gravesites for the duration of the visitation period, escorted as the New York City Department of Correction (“DOC”) deems appropriate. It is the intention of the parties that the City will seek to accommodate as many visitors as it can, up to the twenty-five visitor limit. At its discretion, the City may provide for additional visitors beyond the maximum of twenty-five.
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CCaassee11:1:144-c-cvv-0-099553333-V-VSSBB DDooccuummeennt t2473-1 FFileiledd0027/1/098/1/165 PPaaggee33oof f1100
5. So long as Hart Island remains under the jurisdiction of DOC, the City may use DOC employees to escort visitors to Hart Island gravesites, and such employees may be attired as required by DOC rules and regulations.
6. The City shall maintain an online system and a telephone system through which individuals may schedule Hart Island gravesite visits for designated visitation periods. The City may require individuals to notify it of a requested visit up to twelve business days in advance of the visit and may require the person requesting such visit (“requestor”), on that person’s own behalf or on behalf of a group of visitors to the same gravesite, the following information: the requestor’s name and contact telephone and/or email address; the name of the deceased; affirmance of the requestor’s relationship to the deceased; preferred date of visit; the number of people they wish to be accompanied by; and, for each additional member of the requestor’s party, if any, each visitor’s name and whether they are a family member of the deceased or an invitee. If the requestor provides an email address, the online system shall generate an automated confirmation receipt to the requestor confirming the details of the request. Except for the affirmance described above and except as provided in Paragraph 19, below, the City will not require documentation of a requestor’s familial relationship to the deceased unless the City has a reasonable basis for concluding that, notwithstanding such affirmance, no such family relationship exists between the requestor and the deceased, in which case the City may require documentation if it has been unable to confirm the relationship through other credible means.
7. Within five business days of a request for a visit, the City shall contact the requestor to confirm the request, modify the request, or seek to reschedule the request. Visits shall be scheduled for the requested date unless accommodating a request is not feasible due to
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CCaassee11:1:144-c-cvv-0-099553333-V-VSSBB DDooccuummeennt t2473-1 FFileiledd0027/1/098/1/165 PPaaggee44oof f1100
the inability to locate gravesites due to the age of gravesites; the proximity of a gravesite to open, active gravesites; weather conditions; a lack of availability on the date requested due to the maximum number of visitors being reached; and any other factors beyond the City’s control, in which case the City shall make reasonable efforts to reschedule the visit for the next date requested by the requestor. If a deceased person’s specific gravesite is either unidentifiable or is otherwise inaccessible for reasons that cannot reasonably be remedied before the date of the requested visit, the City shall so advise the requestor in advance of the requested visit and shall, at the requestor’s option, permit a visit to an alternate gravesite or other location reasonably proximate to the requested gravesite. There shall be no limit on the number of times a person is permitted to visit.
8. In the event that demand for visits exceeds capacity, the City reserves the right to give visit priority to family members. No non-family member visitor whose visit has been confirmed shall have that confirmation rescinded with less than three business days’ notice.
9. The City may require visitors to sign a liability waiver as a condition of visitation, and the waiver will be available online and also at the City Island dock on the day of visitation. Visitors shall execute and submit any required waiver of liability in advance via email or regular mail, so that it is received by the DOC prior to the day of visitation, or in person on the day of visitation. Upon arrival at the City Island dock, visitors may be required to provide valid identification and sign the Hart Island Visitor’s Book.
10. Because of the extremely limited street-side parking available in the vicinity of the Hart Island ferry dock – bordering a private residential area – each group of visitors will be requested to coordinate travel to the City Island dock so as to bring as few vehicles to the site as possible.
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CCaassee11:1:144-c-cvv-0-099553333-V-VSSBB DDooccuummeennt t2473-1 FFileiledd0027/1/098/1/165 PPaaggee55oof f1100
11. The City reserves the right to search visitors consistent with its legitimate security concerns. City employees escorting visitors to gravesites shall maintain a respectful distance while visitors are present at a gravesite consistent with legitimate security concerns. The City may require visitors to surrender electronic devices, which the City shall safeguard until returned to the visitor at the conclusion of the visit.
12. Visitors shall be permitted to leave the following mementos at gravesites: flowers without vases, small stuffed animals, photographs, prayer cards, small flags, and blankets. When requesting a visit, requestors may seek permission to bring other mementos, which the City will consider on a case-by-case basis. Nothing in this paragraph bars the City from adding to the list of permitted mementos.
13. The City will continue to maintain a publicly accessible database for members of the public to locate persons buried on Hart Island (either the current Hart Island Lookup Service or another equivalent service). By July 31, 2015, and continuing thereafter, the name, date of death, and Hart Island burial plot number shall be accessible in the database within thirty days of a person’s burial.
14. Separate and apart from the gravesite visits specified in this Stipulation and Order, the City shall continue non-gravesite visits to Hart Island on a monthly basis.
15. The City shall not be liable for failing to fulfill the above-described obligations for reasons of equipment or ferry malfunctions, unanticipated staffing shortages, inclement weather, or other circumstances beyond the City’s control. In instances where any of these circumstances prevent a visitation day from taking place, the City will make reasonable efforts to promptly notify each requestor scheduled to visit that day, to remedy the situation
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CCaassee11:1:144-c-cvv-0-099553333-V-VSSBB DDooccuummeennt t2473-1 FFileiledd0027/1/098/1/165 PPaaggee66oof f1100
promptly, and to reschedule that visitation day as soon as practicable. Nothing in this paragraph relieves the City from the obligation to provide twelve visits every twelve months.
16. By July 31, 2015, the City shall post and then maintain on the DOC website with the online visit request form described in Paragraph 6 the sum and substance of Paragraphs 1-14 of this Stipulation and Order. The City shall also post and maintain on the website a listing of specific scheduled weekend visitation dates for at least the next six months.
17. Within forty-five days of the end of each quarter, starting with the quarter ending September 30, 2015, and concluding with the quarter ending March 31, 2018, the City shall provide the plaintiffs’ counsel with the following information, which may be derived from its online request portal or other sources, for each visitation day during the quarter: (1) the number of gravesite visit requests; (2) the number of persons, including guests, included in the requests; (3) the number of requests granted for an alternate date; (4) the number of requests neither granted nor rescheduled and the reason for the decision (including but not limited to the conclusion that the requestor was not related to the deceased or that the requestor was unable to produce documentation requested by DOC as provided in Paragraph 6); (5) the total number of gravesite visitors; and (6) the total number of family members and guests whose requests were not granted or were rescinded during the quarter because of lack of capacity. Following each quarterly production and upon request by Plaintiffs’ counsel for good cause, the City shall produce any requestor’s name and contact information for the quarter, unless the requestor has objected to the production of such information.
18. Following production of the information specified above for the second quarter of 2016, the parties shall meet and confer in good faith to determine whether to make changes to the frequency of visitation days or the number of visitors who can be accommodated
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CCaassee11:1:144-c-cvv-0-099553333-V-VSSBB DDooccuummeennt t2473-1 FFileiledd0027/1/098/1/165 PPaaggee77oof f1100
on visitation days. Should the parties agree to modify the frequency of visitation days or the number of visitors who can be accommodated on visitation days, they shall submit a proposed Amended Stipulation and Order to the Court for approval. Should the parties disagree about the need to modify the frequency of visitation days or the number of visitors who can be accommodated on visitation days, the party seeking modification shall notify the other party in writing at least thirty days before filing any motion seeking said modification. Any motion must be made by November 15, 2016.
19. In any motion by the plaintiffs to increase the number of visits or visitors to Hart Island for gravesite visits, plaintiffs shall be entitled to a modification only upon proving that members of the class are being denied gravesite visitation in violation of the federal and/or New York State constitutional provisions alleged in the Complaint in this action. In any dispute raised pursuant to Paragraph 18, above, or in any motion made pursuant to this paragraph, the City reserves its right to seek discovery of, and to use in response to the dispute or in defense of the motion, documents and other information relevant to the proof or disproof of requestors’ familial relationship to the deceased they visited on Hart Island. In no event shall any modification sought without consent by both parties include an extension of the termination date of this Stipulation and Order, or of the Court’s jurisdiction over the terms thereof, except as provided in Paragraph 22, below.
20. If plaintiffs believe that the City has not substantially complied with a material term of this Stipulation and Order, plaintiffs shall notify the City in writing of the purported noncompliance and of plaintiffs’ basis for believing there is noncompliance. The parties shall then engage in good-faith efforts to resolve the issue. If those efforts are unsuccessful, plaintiffs may seek judicial relief to enforce the relevant term(s) of the Stipulation
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CCaassee11:1:144-c-cvv-0-099553333-V-VSSBB DDooccuummeennt t2473-1 FFileiledd0027/1/098/1/165 PPaaggee88oof f1100
and Order but may not initiate such action until forty-five days after having provided the written notice required by this paragraph. In any such motion by the plaintiffs based upon the City’s alleged non-compliance, the City shall be considered to be in compliance therewith unless plaintiffs establish that the City’s failures or omissions to meet the terms of this Stipulation and Order were not minimal or isolated, but were substantial.
21. If at any time after entry of this Stipulation and Order, plaintiffs’ counsel believes that there have been instances in which individuals have attempted to call DOC to request a visit using the telephone system referenced in Paragraph 6, above, and such call was not answered by DOC, plaintiffs’ counsel shall notify the City promptly. Plaintiffs shall not use the City’s alleged failure to answer visit requests made by telephone as grounds for modification, enforcement, contempt, or other relief.
22. The jurisdiction of this Court shall terminate for all purposes on December 1, 2018, except that the Court shall maintain continuing jurisdiction over this action for the purpose of resolving any motion timely made by plaintiffs seeking modification, enforcement, or contempt, pursuant to Paragraphs 18-20, above. Once jurisdiction of the Court ends, nothing in this agreement shall bar the plaintiffs, including any putative class member, from filing suit to seek judicial relief ordering the City to provide gravesite visits.
23. The parties agree that the plaintiffs are prevailing parties in this matter for purposes of attorneys’ fees and costs. They shall work in good faith to resolve any request for reimbursement for fees and costs. Should those efforts fail, the plaintiffs may file a motion for fees and costs.
24. The parties stipulate to the certification of a plaintiff class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure that is defined as follows:
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CCaassee11:1:144-c-cvv-0-099553333-V-VSSBB DDooccuummeennt t2473-1 FFileiledd0027/1/098/1/165 PPaaggee99oof f1100
All parents, step-parents, children, step-children, spouses, siblings, step-siblings, half-siblings, grandparents, grandchildren, uncles, aunts, nephews, nieces, first cousins, second cousins, and legal guardians of deceased individuals buried on Hart Island; wards of deceased guardians buried on Hart Island; and domestic partners of deceased individuals buried on Hart Island, who wish to visit the gravesites of said deceased individuals. 25. The parties understand that this Stipulation and Order is subject to Court review and approval pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. Pending approval by the Court, the parties agree to be bound by the terms of this Stipulation and Order as of the date it is submitted to the Court. 26. In the event the Court does not approve this Stipulation and Order, the parties shall meet and confer in good faith to determine whether to agree upon a modified Stipulation and Order. If they are unable to do so, this Stipulation and Order shall become null and void, and this case shall be restored to the active docket so the plaintiffs can proceed with the litigation. 27. The plaintiffs shall each execute and deliver to the City’s attorney all documents necessary to effect this settlement, including but not limited to, releases from plaintiffs and plaintiffs’ counsel and a W-9 form for plaintiffs’ counsel.
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CCaassee11:1:144-c-cvv-0-099553333-V-VSSBB DDooccuummeennt t2473-1 FFileiledd0027/1/098/1/165 PPaaggee1100oof f1100

28. 'l'his Stipulation and Order contains all the terms and conditions agreed
upon by the parlies hereto, and no oral agreement enterecl into at auy time nor any written
agreement entered into prior to the execution of this Stipulation and Orcler regarding the subject matter of the instant proceeding shall be deemed to exist, or to bind the parties hereto, or to vary the tenns and conditions contained herein.

CHRISTOPHER DUNN CI,ARK BINKLBY DANIEL KACINSKI CHUN LING JUNINE SO New York Civil Liberties Union Foundation 125 Broad Street, 19tl' Floor New York, N.Y. 10004 (212) 607-3300

ZACHARY W. CARTER
Corporation Counsel of the City of New York New York, New York 10007
100 Church Street, Room 2-113
New York, N.Y. 10007
(2r2) 3s6-08e6

By Cll'istopher Dunn Attorney for Pl aintiffb
Dated: New York, New York .luly 8, 2015

By: Omar Tuffaha .Tonathan Pines Attorneys for Defendant

SO ORDERED:
U.S.D.J
Dated: New York, New Yo2r/1k9/2016
2015

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 Case 1:14-cv-09533-VSB Document 52 Filed 01/24/17 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------x

ROSARIA CORTES LUSERO, MARIE CRUZ GARCIA, and MICHELLE CANER, on behalf of themselves and all others similarly situated,
Plaintiffs,
- against -

AMENDED STIPULATION AND ORDER OF SETTLEMENT
14 CV 9533 (VSB)

THE CITY OF NEW YORK,

Defendant.

------------------------------------------------------------------x

WHEREAS the plaintiffs commenced this action by filing a complaint on behalf of themselves and of a proposed class of similarly situated individuals, on or about December 3, 2014, alleging that the defendant City of New York (hereinafter “the City”) violated the plaintiffs’ rights by refusing to permit them to visit the gravesites of family members interred at Hart Island;
WHEREAS the City has denied any and all liability arising out of the plaintiffs’ allegations; and
WHEREAS the parties now desire to resolve the issues raised in this litigation, without further proceedings and without admitting any fault or liability;
IT IS HEREBY STIPULATED AND ORDERED: 1. Effective no later than July 2015, the City shall provide individuals with access to the gravesites of family members buried on Hart Island on at least one weekend day per month (hereinafter “visitation day”), with six Saturday and six Sunday visitation days per year. Subject to Paragraph 15, below, each quarter shall have at least one Saturday and one Sunday

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Case 1:14-cv-09533-VSB Document 52 Filed 01/24/17 Page 2 of 10
visitation day. If the City determines that demand warrants a change in the apportionment of Saturday and Sunday visitation days, it may change the schedule with written notice to plaintiffs’ counsel. For purposes of this Stipulation and Order, “family members” shall include, but is not limited to, parents, step-parents, children, step-children, spouses, siblings, step-siblings, halfsiblings, grandparents, grandchildren, uncles, aunts, nephews, nieces, first cousins, second cousins, legal guardians of the deceased, wards of deceased guardians, and domestic partners. Each family member may be permitted to be accompanied on their gravesite visit by up to four other individuals (who do not have to be family members of those buried on Hart Island). Any family member wishing to bring a larger group to a gravesite visit may request such a visit, and the City shall make reasonable efforts to accommodate any such request, subject to Paragraph 8, below.
2. On each visitation day, the City shall provide ferry service to transport visitors to and from Hart Island.
3. On each visitation day, there shall be at least two periods for gravesite visits (hereinafter “visitation periods”), each of which shall last for two hours, including travel time, with the earlier visitation period not starting before 9:00 a.m. Visitors may be required to arrive at the City Island dock thirty minutes before the scheduled visitation period.
4. For each visitation period, the City shall provide for a maximum of thirtyfive visitors to visit their requested gravesites for the duration of the visitation period, escorted as the New York City Department of Correction (“DOC”) deems appropriate. It is the intention of the parties that the City will seek to accommodate as many visitors as it can, up to the thirty-five visitor limit. At its discretion, the City may provide for additional visitors beyond the maximum of thirty-five.
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Case 1:14-cv-09533-VSB Document 52 Filed 01/24/17 Page 3 of 10
5. So long as Hart Island remains under the jurisdiction of DOC, the City may use DOC employees to escort visitors to Hart Island gravesites, and such employees may be attired as required by DOC rules and regulations.
6. The City shall maintain an online system and a telephone system through which individuals may schedule Hart Island gravesite visits for designated visitation periods. The City may require individuals to notify it of a requested visit up to twelve business days in advance of the visit and may require the person requesting such visit (“requestor”), on that person’s own behalf or on behalf of a group of visitors to the same gravesite, the following information: the requestor’s name and contact telephone and/or email address; the name of the deceased; affirmance of the requestor’s relationship to the deceased; preferred date of visit; the number of people they wish to be accompanied by; and, for each additional member of the requestor’s party, if any, each visitor’s name and whether they are a family member of the deceased or an invitee. If the requestor provides an email address, the online system shall generate an automated confirmation receipt to the requestor confirming the details of the request. Except for the affirmance described above and except as provided in Paragraph 19, below, the City will not require documentation of a requestor’s familial relationship to the deceased unless the City has a reasonable basis for concluding that, notwithstanding such affirmance, no such family relationship exists between the requestor and the deceased, in which case the City may require documentation if it has been unable to confirm the relationship through other credible means.
7. Within five business days of a request for a visit, the City shall contact the requestor to confirm the request, modify the request, or seek to reschedule the request. Visits shall be scheduled for the requested date unless accommodating a request is not feasible due to
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Case 1:14-cv-09533-VSB Document 52 Filed 01/24/17 Page 4 of 10
the inability to locate gravesites due to the age of gravesites; the proximity of a gravesite to open, active gravesites; weather conditions; a lack of availability on the date requested due to the maximum number of visitors being reached; and any other factors beyond the City’s control, in which case the City shall make reasonable efforts to reschedule the visit for the next date requested by the requestor. If a deceased person’s specific gravesite is either unidentifiable or is otherwise inaccessible for reasons that cannot reasonably be remedied before the date of the requested visit, the City shall so advise the requestor in advance of the requested visit and shall, at the requestor’s option, permit a visit to an alternate gravesite or other location reasonably proximate to the requested gravesite. There shall be no limit on the number of times a person is permitted to visit.
8. In the event that demand for visits exceeds capacity, the City reserves the right to give visit priority to family members. No non-family member visitor whose visit has been confirmed shall have that confirmation rescinded with less than three business days’ notice.
9. The City may require visitors to sign a liability waiver as a condition of visitation, and the waiver will be available online and also at the City Island dock on the day of visitation. Visitors shall execute and submit any required waiver of liability in advance via email or regular mail, so that it is received by the DOC prior to the day of visitation, or in person on the day of visitation. Upon arrival at the City Island dock, visitors may be required to provide valid identification and sign the Hart Island Visitor’s Book.
10. Because of the extremely limited street-side parking available in the vicinity of the Hart Island ferry dock – bordering a private residential area – each group of visitors will be requested to coordinate travel to the City Island dock so as to bring as few vehicles to the site as possible.
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Case 1:14-cv-09533-VSB Document 52 Filed 01/24/17 Page 5 of 10
11. The City reserves the right to search visitors consistent with its legitimate security concerns. City employees escorting visitors to gravesites shall maintain a respectful distance while visitors are present at a gravesite consistent with legitimate security concerns. The City may require visitors to surrender electronic devices, which the City shall safeguard until returned to the visitor at the conclusion of the visit.
12. Visitors shall be permitted to leave the following mementos at gravesites: flowers without vases, small stuffed animals, photographs, prayer cards, small flags, and blankets. When requesting a visit, requestors may seek permission to bring other mementos, which the City will consider on a case-by-case basis. Nothing in this paragraph bars the City from adding to the list of permitted mementos.
13. The City will continue to maintain a publicly accessible database for members of the public to locate persons buried on Hart Island (either the current Hart Island Lookup Service or another equivalent service). By July 31, 2015, and continuing thereafter, the name, date of death, and Hart Island burial plot number shall be accessible in the database within thirty days of a person’s burial.
14. Separate and apart from the gravesite visits specified in this Stipulation and Order, the City shall continue non-gravesite visits to Hart Island on a monthly basis.
15. The City shall not be liable for failing to fulfill the above-described obligations for reasons of equipment or ferry malfunctions, unanticipated staffing shortages, inclement weather, or other circumstances beyond the City’s control. In instances where any of these circumstances prevent a visitation day from taking place, the City will make reasonable efforts to promptly notify each requestor scheduled to visit that day, to remedy the situation
- 5 -

Case 1:14-cv-09533-VSB Document 52 Filed 01/24/17 Page 6 of 10
promptly, and to reschedule that visitation day as soon as practicable. Nothing in this paragraph relieves the City from the obligation to provide twelve visits every twelve months.
16. By July 31, 2015, the City shall post and then maintain on the DOC website with the online visit request form described in Paragraph 6 the sum and substance of Paragraphs 1-14 of this Stipulation and Order. The City shall also post and maintain on the website a listing of specific scheduled weekend visitation dates for at least the next six months.
17. Within forty-five days of the end of each quarter, starting with the quarter ending September 30, 2015, and concluding with the quarter ending March 31, 2018, the City shall provide the plaintiffs’ counsel with the following information, which may be derived from its online request portal or other sources, for each visitation day during the quarter: (1) the number of gravesite visit requests; (2) the number of persons, including guests, included in the requests; (3) the number of requests granted for an alternate date; (4) the number of requests neither granted nor rescheduled and the reason for the decision (including but not limited to the conclusion that the requestor was not related to the deceased or that the requestor was unable to produce documentation requested by DOC as provided in Paragraph 6); (5) the total number of gravesite visitors; and (6) the total number of family members and guests whose requests were not granted or were rescinded during the quarter because of lack of capacity. Following each quarterly production and upon request by Plaintiffs’ counsel for good cause, the City shall produce any requestor’s name and contact information for the quarter, unless the requestor has objected to the production of such information.
18. Following production of the information specified above for the second quarter of 2016, the parties shall meet and confer in good faith to determine whether to make changes to the frequency of visitation days or the number of visitors who can be accommodated
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Case 1:14-cv-09533-VSB Document 52 Filed 01/24/17 Page 7 of 10
on visitation days. Should the parties agree to modify the frequency of visitation days or the number of visitors who can be accommodated on visitation days, they shall submit a proposed Amended Stipulation and Order to the Court for approval. Should the parties disagree about the need to modify the frequency of visitation days or the number of visitors who can be accommodated on visitation days, the party seeking modification shall notify the other party in writing at least thirty days before filing any motion seeking said modification. Any motion must be made by November 15, 2016.
19. In any motion by the plaintiffs to increase the number of visits or visitors to Hart Island for gravesite visits, plaintiffs shall be entitled to a modification only upon proving that members of the class are being denied gravesite visitation in violation of the federal and/or New York State constitutional provisions alleged in the Complaint in this action. In any dispute raised pursuant to Paragraph 18, above, or in any motion made pursuant to this paragraph, the City reserves its right to seek discovery of, and to use in response to the dispute or in defense of the motion, documents and other information relevant to the proof or disproof of requestors’ familial relationship to the deceased they visited on Hart Island. In no event shall any modification sought without consent by both parties include an extension of the termination date of this Stipulation and Order, or of the Court’s jurisdiction over the terms thereof, except as provided in Paragraph 22, below.
20. If plaintiffs believe that the City has not substantially complied with a material term of this Stipulation and Order, plaintiffs shall notify the City in writing of the purported noncompliance and of plaintiffs’ basis for believing there is noncompliance. The parties shall then engage in good-faith efforts to resolve the issue. If those efforts are unsuccessful, plaintiffs may seek judicial relief to enforce the relevant term(s) of the Stipulation
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Case 1:14-cv-09533-VSB Document 52 Filed 01/24/17 Page 8 of 10
and Order but may not initiate such action until forty-five days after having provided the written notice required by this paragraph. In any such motion by the plaintiffs based upon the City’s alleged non-compliance, the City shall be considered to be in compliance therewith unless plaintiffs establish that the City’s failures or omissions to meet the terms of this Stipulation and Order were not minimal or isolated, but were substantial.
21. If at any time after entry of this Stipulation and Order, plaintiffs’ counsel believes that there have been instances in which individuals have attempted to call DOC to request a visit using the telephone system referenced in Paragraph 6, above, and such call was not answered by DOC, plaintiffs’ counsel shall notify the City promptly. Plaintiffs shall not use the City’s alleged failure to answer visit requests made by telephone as grounds for modification, enforcement, contempt, or other relief.
22. The jurisdiction of this Court shall terminate for all purposes on December 1, 2018, except that the Court shall maintain continuing jurisdiction over this action for the purpose of resolving any motion timely made by plaintiffs seeking modification, enforcement, or contempt, pursuant to Paragraphs 18-20, above. Once jurisdiction of the Court ends, nothing in this agreement shall bar the plaintiffs, including any putative class member, from filing suit to seek judicial relief ordering the City to provide gravesite visits.
23. The parties agree that the plaintiffs are prevailing parties in this matter for purposes of attorneys’ fees and costs. They shall work in good faith to resolve any request for reimbursement for fees and costs. Should those efforts fail, the plaintiffs may file a motion for fees and costs.
24. The parties stipulate to the certification of a plaintiff class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure that is defined as follows:
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Case 1:14-cv-09533-VSB Document 52 Filed 01/24/17 Page 9 of 10
All parents, step-parents, children, step-children, spouses, siblings, step-siblings, half-siblings, grandparents, grandchildren, uncles, aunts, nephews, nieces, first cousins, second cousins, and legal guardians of deceased individuals buried on Hart Island; wards of deceased guardians buried on Hart Island; and domestic partners of deceased individuals buried on Hart Island, who wish to visit the gravesites of said deceased individuals. 25. The parties understand that this Stipulation and Order is subject to Court review and approval pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. Pending approval by the Court, the parties agree to be bound by the terms of this Stipulation and Order as of the date it is submitted to the Court. 26. In the event the Court does not approve this Stipulation and Order, the parties shall meet and confer in good faith to determine whether to agree upon a modified Stipulation and Order. If they are unable to do so, this Stipulation and Order shall become null and void, and this case shall be restored to the active docket so the plaintiffs can proceed with the litigation. 27. The plaintiffs shall each execute and deliver to the City’s attorney all documents necessary to effect this settlement, including but not limited to, releases from plaintiffs and plaintiffs’ counsel and a W-9 form for plaintiffs’ counsel.
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Case 1:14-cv-09533-VSB Document 52 Filed 01/24/17 Page 10 of 10

 
 Case: 1:14-cv-9533 As of: 04/19/2017 09:01 PM EDT 1 of 7
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:14−cv−09533−VSB

CLOSED,ECF

Lusero et al v. The City of New York Assigned to: Judge Vernon S. Broderick Related Case: 1:15−cv−06533−VSB Cause: 42:1983 Civil Rights Act Plaintiff Rosaria Cortes Lusero on behalf of herself and all others similarly situated
Plaintiff Marie Cruz Garcia on behalf of herself and all others similarly situated
Plaintiff Michelle Caner on behalf of herself and all others similarly situated

Date Filed: 12/03/2014 Date Terminated: 02/19/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Christopher T Dunn New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 344−3005 Fax: (212) 344−3318 Email: cdunn@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant The City of New York

represented by Lauren Almquist Lively New York City Law Department 100 Church Street New York, NY 10007 (212)−356−0885 Email: llively@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar Hani Tuffaha New York City Law Department 100 Church St. New York, NY 10014 (212) 356−0896 Fax: (212)−788−0877 Email: otuffaha@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan L. Pines NYC Law Department, Office of the Corporation Counsel 100 Church Street New York, NY 10007

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(212) 788−0933 Fax: (212) 788−0940 Email: jpines@law.nyc.gov ATTORNEY TO BE NOTICED

Date Filed 12/03/2014 12/03/2014 12/03/2014 12/03/2014 12/03/2014 12/17/2014 12/17/2014 12/19/2014 01/23/2015 02/09/2015
02/13/2015
02/17/2015
02/18/2015
02/27/2015
03/06/2015

# Docket Text
1 COMPLAINT against The City of New York. (Filing Fee $ 350.00, Receipt Number 465401111156)Document filed by Rosaria Cortes Lusero, Marie Cruz Garcia, Michelle Caner.(cde) (Entered: 12/08/2014)
2 CIVIL COVER SHEET filed. (cde) (Entered: 12/08/2014)
SUMMONS ISSUED as to The City of New York. (cde) (Entered: 12/08/2014)
Magistrate Judge Andrew J. Peck is so designated. (cde) (Entered: 12/08/2014)
Case Designated ECF. (cde) (Entered: 12/08/2014)
3 NOTICE OF APPEARANCE by Lauren Almquist Lively on behalf of The City of New York. (Lively, Lauren) (Entered: 12/17/2014)
4 FIRST LETTER MOTION for Extension of Time to File Answer addressed to Judge Vernon S. Broderick from Lauren Almquist Lively dated December 17, 2014. Document filed by The City of New York.(Lively, Lauren) (Entered: 12/17/2014)
5 ORDER granting 4 Letter Motion for Extension of Time to Answer The City of New York answer due 1/23/2015. Application Granted. SO ORDERED.(Signed by Judge Vernon S. Broderick on 12/19/2014) (ama) (Entered: 12/19/2014)
6 ANSWER to 1 Complaint. Document filed by The City of New York.(Lively, Lauren) (Entered: 01/23/2015)
7 ORDER AND NOTICE OF INITIAL PRETRIAL CONFERENCE: Initial Pretrial Conference set for 2/25/2015 at 10:00 AM in Courtroom 518, 40 Centre Street, New York, NY 10007 before Judge Vernon S. Broderick.O By 2/18/2015, the parties shall submit a joint letter, not to exceed 3 pages, providing the information as further set forth in this Order. By 2/18/2015, the parties shall jointly submit to the Court a proposed case management plan and scheduling order. Plaintiff is ordered to serve the Defendant with a copy of this order and to file an affidavit on ECF certifying that such service has been effectuated. (Signed by Judge Vernon S. Broderick on 2/9/2015) (tro) (Entered: 02/09/2015)
8 AFFIDAVIT OF SERVICE of Order and Notice of Initial Conference served on City of New York on 2/10/2015. Service was made by Mail. Document filed by Michelle Caner, Marie Cruz Garcia, Rosaria Cortes Lusero. (Dunn, Christopher) (Entered: 02/13/2015)
9 JOINT LETTER MOTION to Adjourn Conference addressed to Judge Vernon S. Broderick from Christopher Dunn dated 2−17−2015. Document filed by Michelle Caner, Marie Cruz Garcia, Rosaria Cortes Lusero, The City of New York.(Dunn, Christopher) (Entered: 02/17/2015)
10 ORDER granting 9 Letter Motion to Adjourn Conference. APPLICATION GRANTED. SO ORDERED. Initial Conference set for 3/6/2015 at 11:00 AM before Judge Vernon S. Broderick. (Signed by Judge Vernon S. Broderick on 2/18/2015) (kl) (Entered: 02/18/2015)
11 JOINT LETTER addressed to Judge Vernon S. Broderick from Christopher Dunn and Lauren Lively dated 2/27/2015 re: Initial Conference. Document filed by Michelle Caner, Marie Cruz Garcia, Rosaria Cortes Lusero, The City of New York. (Attachments: # 1 Proposed Scheduling Order)(Dunn, Christopher) (Entered: 02/27/2015)
Minute Entry for proceedings held before Judge Vernon S. Broderick: Initial Pretrial Conference held on 3/6/2015. The parties shall provide a status update letter by 4/6/2015. (msa) (Entered: 03/06/2015)

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03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015 04/02/2015 04/03/2015 06/04/2015

12 LAW STUDENT INTERN APPEARANCE FORM: I authorize this student (Chun Ling Junine So): (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client as further set forth in this order. (Signed by Judge Vernon S. Broderick on 3/6/2015) (lmb) Modified on 3/6/2015 (lmb). (Entered: 03/06/2015)
13 LAW STUDENT INTERN APPEARANCE FORM: I authorize this student (Chun Ling Junine So): (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client as further set forth in this order. (Signed by Judge Vernon S. Broderick on 3/6/2015) (lmb) (Entered: 03/06/2015)
14 LAW STUDENT INTERN APPEARANCE FORM: I authorize this student (Chun Ling Junine So): (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client as further set forth in this order. (Signed by Judge Vernon S. Broderick on 3/6/2015) (lmb) (Entered: 03/06/2015)
15 LAW STUDENT INTERN APPEARANCE FORM: I authorize this student (Daniel Kacinski): (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client as further set forth in this order. (Signed by Judge Vernon S. Broderick on 3/6/2015) (lmb) (Entered: 03/06/2015)
16 LAW STUDENT INTERN APPEARANCE FORM: I authorize this student (Daniel Kacinski): (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client as further set forth in this order. (Signed by Judge Vernon S. Broderick on 3/6/2015) (lmb) (Entered: 03/06/2015)
17 LAW STUDENT INTERN APPEARANCE FORM: I authorize this student (Daniel Kacinski): (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client as further set forth in this order. (Signed by Judge Vernon S. Broderick on 3/6/2015) (lmb) (Entered: 03/06/2015)
18 LAW STUDENT INTERN APPEARANCE FORM: I authorize this student (Clark Binkley): (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client as further set forth in this order. (Signed by Judge Vernon S. Broderick on 3/6/2015) (lmb) (Entered: 03/06/2015)
19 LAW STUDENT INTERN APPEARANCE FORM: I authorize this student (Clark Binkley): (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client as further set forth in this order. (Signed by Judge Vernon S. Broderick on 3/6/2015) (lmb) (Entered: 03/06/2015)
20 LAW STUDENT INTERN APPEARANCE FORM: I authorize this student (Clark Binkley): (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client as further set forth in this order. (Signed by Judge Vernon S. Broderick on 3/6/2015) (lmb) (Entered: 03/06/2015)
21 JOINT LETTER MOTION for Extension of Time . Request for a second 30−day stay of discovery addressed to Judge Vernon S. Broderick from Omar H. Tuffaha dated 4/2/2015. Document filed by The City of New York.(Tuffaha, Omar) (Entered: 04/02/2015)
22 ORDER granting 21 Letter Motion for Extension of Time: APPLICATION GRANTED. No further discovery stays will be granted absent extraordinary circumstances. (Signed by Judge Vernon S. Broderick on 4/3/2015) (tn) (Entered: 04/03/2015)
23 ORDER: On February 27, 2015 the parties submitted a proposed case management plan. (Doc. 11−1.) During the initial pre−trial conference held on March 6, 2015, the parties indicated that they were engaged in settlement discussions and requested a 30−day stay of discovery. On April 2, 2015, the parties informed me that their settlement discussions were ongoing and jointly requested an additional 30−day stay of discovery until May 6, 2015. To date, the parties have not indicated that this matter is settled. Accordingly, the parties are hereby ORDERED to provide me with a revised proposed case management plan on or before June 18, 2015. (Signed by Judge Vernon S. Broderick on 6/4/2015) (mro) (Entered: 06/05/2015)

Case: 1:14-cv-9533 As of: 04/19/2017 09:01 PM EDT 4 of 7

06/15/2015 06/15/2015 06/16/2015 07/08/2015
07/16/2015 07/17/2015 07/24/2015 08/17/2015
08/27/2015 08/27/2015 08/27/2015 08/27/2015 09/28/2015

24 NOTICE OF APPEARANCE by Jonathan L. Pines on behalf of The City of New York. (Pines, Jonathan) (Entered: 06/15/2015)
25 JOINT LETTER MOTION for Extension of Time to submit stipulation of settlement or proposed case management plan addressed to Judge Vernon S. Broderick from Jonathan Pines dated 6/15/15. Document filed by The City of New York.(Pines, Jonathan) (Entered: 06/15/2015)
26 ORDER granting 25 Letter Motion for Extension of Time. Application granted. (Signed by Judge Vernon S. Broderick on 6/16/2015) (lmb) (Entered: 06/16/2015)
27 LETTER addressed to Judge Vernon S. Broderick from Christopher Dunn dated 7/8/2015 re: Proposed Class Action Settlement. Document filed by Michelle Caner, Marie Cruz Garcia, Rosaria Cortes Lusero, The City of New York. (Attachments: # 1 Text of Proposed Order Proposed Class Action Settlement)(Dunn, Christopher) (Entered: 07/08/2015)
28 JOINT LETTER MOTION for Extension of Time to submit papers addressing class certification, settlement notice, and a fairness hearing addressed to Judge Vernon S. Broderick from Omar H. Tuffaha dated 7/16/2015. Document filed by The City of New York.(Tuffaha, Omar) (Entered: 07/16/2015)
29 ORDER granting 28 Letter Motion for Extension of Time. Application granted. (Signed by Judge Vernon S. Broderick on 7/17/2015) (lmb) (Entered: 07/17/2015)
30 JOINT LETTER addressed to Judge Vernon S. Broderick from Omar H. Tuffaha dated 7/24/2015 re: submission of proposed class stipulations. Document filed by The City of New York.(Tuffaha, Omar) (Entered: 07/24/2015)
31 ORDER: I am in receipt of the parties' proposed: (1) stipulation and order regarding notification of proposed class action settlement; and (2) stipulation and order regarding certification of class action. The parties are hereby ORDERED to submit a motion, on or before August 31, 2015, addressing the fairness, adequacy, and reasonableness of a class settlement according to the factors set forth under City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974)., ( Motions due by 8/31/2015.) (Signed by Judge Vernon S. Broderick on 8/17/2015) (lmb) (Entered: 08/17/2015)
32 JOINT MOTION to Approve Proposed Settlement . Document filed by Michelle Caner, Marie Cruz Garcia, Rosaria Cortes Lusero, The City of New York.(Dunn, Christopher) (Entered: 08/27/2015)
33 MEMORANDUM OF LAW in Support re: 32 JOINT MOTION to Approve Proposed Settlement . . Document filed by Michelle Caner, Marie Cruz Garcia, Rosaria Cortes Lusero. (Dunn, Christopher) (Entered: 08/27/2015)
34 AFFIRMATION of Christopher T. Dunn in Support re: 32 JOINT MOTION to Approve Proposed Settlement .. Document filed by Michelle Caner, Marie Cruz Garcia, Rosaria Cortes Lusero. (Dunn, Christopher) (Entered: 08/27/2015)
35 LETTER addressed to Judge Vernon S. Broderick from Omar H. Tuffaha dated 8/27/2015 re: joint motion for approval of class−action settlement. Document filed by The City of New York.(Tuffaha, Omar) (Entered: 08/27/2015)
36 STIPULATION AND ORDER REGARDING CERTIFICATION OF CLASS ACTION: IT IS THEREFORE STIPULATED AND ORDERED: 1. A plaintiff class ("Plaintiff Class" or "Class") is hereby certified, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, defined as further set forth in this Order. 7. As required by Rule 23(g)(1), the New York Civil Liberties Union Foundation shall be appointed to serve as class counsel. 8. As required by Rule 23(g)(4), class counsel will fairly and adequately represent the interests of the proposed class. Class counsel has done extensive work in identifying and investigating the claims in this action, have experience in handling class actions and other complex litigation, have considerable knowledge of the applicable law, and have the necessary resources to commit to monitoring the settlement that the parties have submitted to the Court. 9. As required by Rule 23(b)(2), "the part[ies] opposing the class ha[ve] acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." The complaint challenges a single policy and practice barring grave site visits to Hart

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09/28/2015
12/08/2015 12/09/2015 12/10/2015
12/18/2015 02/17/2016

Island that applies to all class members similarly. 10. Nothing contained herein shall be deemed to constitute an admission by the defendants that any of their alleged actions or omissions violated the plaintiffs' or any proposed class member's rights under any federal or state law. Nothing contained herein shall be considered a binding agreement in any action other than the above−captioned action. (Signed by Judge Vernon S. Broderick on 9/28/2015) (lmb) (Entered: 09/28/2015)
37 STIPULATION AND ORDER REGARDING NOTIFICATION OF PROPOSED CLASS ACTION SETTLEMENT: IT IS HEREBY STIPULATED AND ORDERED: 1. Within fourteen days of the date this Order is entered, the Defendant City of New York shall publish the Notice of Proposed Class Action Settlement ("Notice"), annexed as Exhibit "B," by the following means, determined by this Court to be appropriate and sufficient, pursuant to the provisions of Rule 23(c)(2)(A) of the Federal Rules of Civil Procedure as further set forth in this order. 2. Any member of the Plaintiff Class ("Class Member") shall have the right to submit a written objection to the Court in advance of the Fairness Hearing, or to appear and be heard at the Fairness Hearing, pursuant to the terms of the Notice. Any Class Member who does not make his or her objection at the Fairness Hearing or in writing timely submitted prior to the Fairness Hearing shall be deemed to have waived such opportunity and shall forever be foreclosed from making any objection to the Stipulation and Order of Settlement. 3. A Fairness Hearing will be held before Judge Vernon S. Broderick on December 9, 2015, at 10:15 a.m. in Courtroom 518, at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York, at which time the Court will determine whether the proposed Stipulation and Order of Settlement should be finally approved as fair, reasonable, and adequate, and whether it shall be entered as the Final Judgment in this action. Any written objections shall be filed by November 25, 2015., ( Fairness Hearing set for 12/9/2015 at 10:15 AM in Courtroom 518, 40 Centre Street, New York, NY 10007 before Judge Vernon S. Broderick.) (Signed by Judge Vernon S. Broderick on 9/28/2015) (lmb) (Entered: 09/28/2015)
38 LETTER addressed to Judge Vernon S. Broderick from Christopher Dunn dated 12/8/2015 re: Fairness Hearing. Document filed by Michelle Caner, Marie Cruz Garcia, Rosaria Cortes Lusero.(Dunn, Christopher) (Entered: 12/08/2015)
Minute Entry for proceedings held before Judge Vernon S. Broderick: Fairness Hearing held on 12/9/2015. Joint submission due 12/18/2015. (Court Reporter Alena Lynch) (msa) (Entered: 12/09/2015)
39 ORDER: As detailed in the fairness hearing held in this matter on December 9, 2015 at 10:45 a.m., it is hereby: ORDERED that the parties shall submit to the Court a joint letter on or before December 18, 2015 addressing (1) why the settlement agreement is fair and reasonable even though it does not permit the taking of photographs by family members and/or visitors to Hart Island, (2) the results of the investigation by the parties concerning whether or not remains of veterans are buried on Hart Island, and (3) if such remains are on Hart Island, why the settlement agreement is fair and reasonable even though it does not permit veterans' groups to serve as caretakers and/or memorialize the veterans buried on Hart Island. IT IS FURTHER ORDERED that the parties' joint submission may extend beyond the three−page limit generally imposed by this Court for communications of this nature. After receiving the submission by the parties I will determine whether or not I will require additional oral argument related to the settlement agreement. (Signed by Judge Vernon S. Broderick on 12/10/2015) (lmb) (Entered: 12/10/2015)
40 JOINT LETTER addressed to Judge Vernon S. Broderick from Omar H. Tuffaha dated 12/18/2015 re: the parties' positions regarding the issues set forth in the Court's December 10, 2015 Order. Document filed by The City of New York.(Tuffaha, Omar) (Entered: 12/18/2015)
41 TRANSCRIPT of Proceedings re: Conference held on 12/9/2015 before Judge Vernon S. Broderick. Court Reporter/Transcriber: Alena Lynch, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/14/2016. Redacted Transcript Deadline set for 3/24/2016. Release of Transcript Restriction set for 5/20/2016.(Siwik, Christine) (Entered: 02/17/2016)

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02/17/2016 02/19/2016
02/19/2016 02/26/2016 04/08/2016
06/07/2016 06/07/2016 06/08/2016 10/17/2016 10/18/2016

42 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 12/9/15 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Siwik, Christine) (Entered: 02/17/2016)
43 STIPULATION AND ORDER OF SETTLEMENT: Effective no later than July 2015, the City shall provide individuals with access to the gravesites of family members buried on Hart Island on at least one weekend day per month (hereinafter "visitation day"), with six Saturday and six Sunday visitation days per year. Subject to Paragraph 15, below, each quarter shall have at least one Saturday and one Sunday visitation day. If the City determines that demand warrants a change in the apportionment of Saturday and Sunday visitation days, it may change the schedule with written notice to plaintiffs' counsel. For purposes of this Stipulation and Order, "family members" shall include, but is not limited to, parents, step−parents, children, step−children, spouses, siblings, step−siblings, half−siblings, grandparents, grandchildren, uncles, aunts, nephews, nieces, first cousins, second cousins, legal guardians of the deceased, wards of deceased guardians, and domestic partners. Each family member may be permitted to be accompanied on their gravesite visit by up to four other individuals (who do not have to be family members of those buried on Hart Island). Any family member wishing to bring a larger group to a gravesite visit may request such a visit, and the City shall make reasonable efforts to accommodate any such request, subject to Paragraph 8, below, and as further set forth in this order. (Signed by Judge Vernon S. Broderick on 2/19/2016) (tn) (Entered: 02/19/2016)
44 ORDER: that the Proposed Settlement is APPROVED. The Clerk of Court is respectfully directed to close this case. (Signed by Judge Vernon S. Broderick on 2/19/2016) (tn) (Entered: 02/19/2016)
Mailed a copy of 44 Order, 43 Stipulation and Order, to Jenedra Binyard 3025 West 32nd Street Apt. 12F Brooklyn, NY 11224. (ca) (Entered: 02/26/2016)
45 STIPULATION AND ORDER OF SETTLEMENT REGARDING ATTORNEYS' FEES: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows: 1. Plaintiffs' claims for attorneys' fees and costs related to this matter are hereby resolved and dismissed, with prejudice, and without any fees or costs in excess of the amount specified in paragraph "2" below. 2. The City of New York shall pay Plaintiffs, on behalf of themselves and of the Plaintiff Class, FIFTY−EIGHT THOUSAND SIX HUNDRED FORTY−FIVE DOLLARS AND ZERO CENTS ($58,645.00) in full satisfaction of all claims for attorneys' fees and costs related to this matter. Payment will be made by check, payable to "NEW YORK CIVIL LIBERTIES UNION FOUNDATION." (As further set forth in this Order) (Signed by Judge Vernon S. Broderick on 4/8/2016) (kl) (Entered: 04/08/2016)
46 MEMO ENDORSEMENT on re: (28 in 1:15−cv−06533−VSB) Letter filed by Jenedra Binyard. ENDORSEMENT: I will consider Plaintiff's submissions, (Docs. 27, 28), to constitute her opposition to Defendants' motion to dismiss, (Doc. 23). As stated in my May 13, 2016 Order, (Doc. 26), Defendant's response, if any, is due on or before June 20, 2016. The Clerk of Court is respectfully directed to mail a copy of this endorsement to the pro se Plaintiff. (Signed by Judge Vernon S. Broderick on 6/7/2016) (lmb) (Entered: 06/07/2016)
Transmission to Docket Assistant Clerk. Transmitted re: 46 Memo Endorsement, to the Docket Assistant Clerk for case processing. (lmb) (Entered: 06/07/2016)
Mailed a copy of 46 Memo Endorsement,, to Rosaria Cortes Lusero. (vj) (Entered: 06/08/2016)
47 JOINT LETTER MOTION for Extension of Time to file motion seeking modification under paragraph 18 of the stipulation and order of settlement addressed to Judge Vernon S. Broderick from Omar H. Tuffaha dated 10/17/2016. Document filed by The City of New York.(Tuffaha, Omar) (Entered: 10/17/2016)
48 ORDER granting 47 Letter Motion for Extension of Time to file motion seeking modification under paragraph 18 of the stipulation and order of settlement.

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10/18/2016 12/13/2016
12/14/2016 01/23/2017
01/24/2017

APPLICATION GRANTED. (Signed by Judge Vernon S. Broderick on 10/18/2016) (cla) (Entered: 10/18/2016)
Set/Reset Deadlines: Motions due by 12/15/2016. (cla) (Entered: 11/02/2016)
49 CONSENT LETTER MOTION for Extension of Time to file modification motion addressed to Judge Vernon S. Broderick from Christopher Dunn dated 12−13−2016. Document filed by Michelle Caner, Marie Cruz Garcia, Rosaria Cortes Lusero.(Dunn, Christopher) (Entered: 12/13/2016)
50 ORDER granting 49 Letter Motion for Extension of Time to file modification motion. APPLICATION GRANTED. (Motions due by 1/17/2017.) (Signed by Judge Vernon S. Broderick on 12/14/2016) (cla) (Entered: 12/14/2016)
51 JOINT LETTER addressed to Judge Vernon S. Broderick from Omar H. Tuffaha dated 1/23/2017 re: submission of proposed amended stipulation and order of settlement. Document filed by The City of New York. (Attachments: # 1 Text of Proposed Order)(Tuffaha, Omar) (Entered: 01/23/2017)
52 AMENDED STIPULATION AND ORDER OF SETTLEMENT: IT IS HEREBY STIPULATED AND ORDERED: The case is settled as further set out in the order. (Signed by Judge Vernon S. Broderick on 1/24/2017) (cla) (Entered: 01/24/2017)