WATERLOO — The New York State Court of Claims has granted preliminary approval to a proposed settlement of the class action lawsuit filed over the 2005 cryptosporidium outbreak at the Seneca Lake State Park spray park.

If the settlement receives final approval, it would end nine years of litigation with the state of New York involving some 2,500 class members that was weeks from going to trial.

Under terms of the proposed settlement, the state, defendant in the case, has agreed to pay $5 million to end the litigation without going to trial.

That amount, minus any attorney fees and costs awarded by Court of Claims Judge Nicholas Midey Jr. to lawyers for the class will be distributed among the class members according to their award category.

The categories are those who were hospitalized with the diarrheal illness, those who were treated at an emergency room, those who were treated at a non-hospital emergency room and those who received other forms of medical care.

The money also would be used to pay settlement administration costs.

Any funds remaining after the allocation of class member awards and payments for administration expenses would then be allocated on a pro-rated basis among class members who filed a claim form.

To participate in the settlement, a class member must return a claim form postmarked no later than Nov. 14. Claim forms were mailed to all class members.

To be excluded from or to object to the settlement, a class member must do so in writing on or before Oct. 31.

Midey, a Seneca Falls native, will conduct a final hearing to determine whether to approve the settlement at 11 a.m. Nov. 20 at the Court of Claims Courthouse, Salina Place, 205 S. Salina St., Syracuse.

“This was a serious case and we were lucky none of the children died,” said attorney Paul Nunes of the Underberg & Kessler law firm of Rochester, one of three law firms representing class members. “We were heading toward trial. We had hotel rooms reserved in Syracuse for five of our experts who were going to testify.”

Nunes said that lawyers with the State Attorney General’s Office had made numerous requests to dismiss and then delay the case since it was filed in 2005. He said Midey asked the state’s presiding Court of Claims Judge in Albany, Richard Sise, to mediate the matter.

“Judge Sise got involved in May and the settlement offer was made in June,” Nunes said.

He estimated that after legal fees and other costs are deducted, there still will be $3 to $4 million for the 25,000 class members to divide.

Nunes praised the efforts of Midey and then Sise to get to a point of a resolution and is confident the proposal will be approved.

Any class member who fails to submit a valid and timely claim form will not receive any money from the settlement but will be bound by the court’s judgments and forever release any rights to sue the state.

The exception is a class member who filed a written request to be excluded from the settlement.

The full Notice of Proposed class action settlement and final hearing, claim forms and other information are available at www.sprayparkoutbreak.com, by writing to the Seneca Lake Claims Administrator in care of the Notice Company, P.O. Box 455, Hingham, Mass., 02042 or spraypark@notice.com or by calling 1-800-410-7630.

About the lawsuit

In 2005, between June 1 and Aug. 17, hundreds of people who used the new spray park facility at Seneca Lake State Park in Waterloo came down with a diarrheal illness caused by cryptosporidium in the water.

So many were made ill by ingesting bacteria-contaminated water during that period that a class action lawsuit was filed by some 2,500 people.

The class was established by March 31, 2008.

Class members are:

• Those who experienced a diarrheal illness within 1 to 15 days after using the spray park.

• Those who experienced diarrheal illness 1 to 15 days after exposure to a person who was ill.

• People who have the legal obligation for medical bills incurred by a person who met one of the two criteria.

The outbreak caused the state Department of Parks, Recreation and Historic Preservation to shut down the spray park. A new system eventually was installed and has been operating without problems since then.

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