Matter of Thompson v Roman Catholic Diocese of Albany

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Matter of Thompson v Roman Catholic Diocese of Albany 2013 NY Slip Op 32414(U) October 8, 2013 Supreme Court, Albany County Docket Number: 3759-13 Judge: Joseph C. Teresi Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In the Matter of the Petition of Vanetta Thompson and CBC Settlement Funding, LLC for Judicial Approval of the Sale and Transfer of Structured Settlement Payment Rights, pursuant to New York General Obligations Law, 5-1707, et seq., Petitioners, DECISION and ORDER INDEX NO. 3759-13 RJI No. 01-13-110711 against Roman Catholic Diocese of Albany ("Settlement Obligor") and Executive Life Insurance Company of New York, New York State Liquidation Bureau ("Annuity Issuer"), Respondents. Supreme Court Albany County All Purpose Term, October 1, 2013 Assigned to Justice Joseph C. Teresi APPEARANCES: Law Offices Of Robert Ostrov Robert L. Ostrov, Esq. Attorney for Petitioner C. B. C. Settlement Funding LLC. 30 West 60 1h Street - Suite 4E New York, New York 10023 Vanetta Thompson Petitioner Pro-Se 76 Eileen Street Albany, New York 12203 TERESI, J.: CBC Settlement Funding, LLC (hereafter "CBC") commenced this proceeding seeking an order, pursuant to New York General Obligations Law §5-1701, authorizing its acquisition of a portion of Venetta Thompson's (hereafter "Thompson") structured settlement payments. However, because Petitioners failed to establish that the proposed transfer is fair and reasonable [* 2] and in Thompson's best interest this petition is denied. The Structured Settlement Protection Act (SSP A) requires this court, before approving the transfer of any structured settlement, to ensure that "the transfer is in the best interest of the payee ... and [that] the transaction ... [is] fair and reasonable." (General Obligations Law§ 51706 [b]; Matter of Seneca One LLC v D.C., 34 Misc 3dl236[A] [Sup Ct, Bronx County 2012]; In re Settlement Capital Corp., 1 Misc 3d 446 [Sup Ct, Queens County 2003]). Considering first Thompson's "best interest," the factors this Court must consider are: "Payee's age, mental capacity, physical capacity, maturity level, independent income, and ability to support dependants; (2) purpose of the intended use of the funds; (3) potential need for future medical treatment; (4) the financial .acumen of the Payee; (5) whether Payee is in a hardship situation to the extent that he or she is in dire strait's; (6) the ability of the Payee to appreciate financial consequences based on independent legal and financial advise; [and] (7) the timing of the application" (In re Settlement Funding of New York, LLC (Rahman], 31 Misc3d 1229[A] [Sup Ct, Queens County 2011]), quoting In re Settlement Funding ofN.Y., LLC, 2 Misc3d 872 [Sup Ct, Lewis County 2003]). Here, Petitioners failed to establish that this transfer is in Thompson's best interest. First, because CBC's attorney has no personal knowledge of Thompson's best interests, his affirmation and testimony of no "probative value." (2 N. Street Corp. v Getty Saugerties Corp., 68 AD3d 1392 [3d Dept 2009]; Groboski v Godfroy, 74 AD3d 1524 [3d Dept 2010]). Similarly, the two unsworn letters Thompson submitted are inadmissable. (see Ulster County v CSL Inc, 95 AD 3d 1634, 1636 [3d Dept 2012]). Thompson did, however, properly support the petition with an affidavit, documentary evidence and testimony. Thompson, according to her affidavit, is 2 [* 3] 39 years old, married, and the mother of an eight year old child. Thompson offered no proof of her maturity level, her mental capacity, her physical capacity, her need for future medical treatment, or her financial acumen. She also offered no proof of her employment, current or future. On this record, her only disclosed source of income is her monthly structured settlement payment and this transfer would decrease her ability to support both herself and her minor child. While Thompson asse1ts that she plans to use this transaction's proceeds to purchase a new roof and furnace, her conclusory allegation that she considered "other means of raising cash" is insufficient. Importantly, she offered neither the various financing options she explored nor a comparison of this transaction with her alternative options. Moreover, Thompson admitted that she received no independent professional advice concerning this transaction. In light of the foregoing, Petitioner failed to demonstrate that this proposed transfer is in her best interest. Petitioners also failed to establish that this proposed transfer is "fair and reasonable." (General Obligations Law § 5-1706 [b]). The fair and reasonable standard considers both what is reasonable in the marketplace (Matter of 321 Henderson Receivables L.P., 13 Misc 3d 526, 533 [Sup Ct, Erie County 2006]), along with the transaction's discount rate and its percentage of current value. (In re Stratcap Invs., Inc. V. Feola, 24 Misc 3d 1209CA) [Sup Ct, Bronx County 2009]). Here, CBC proposes to pay Thompson $34,342. 70 for her interest in two hundred and thirty two monthly payments of $800, a total of $185,600. This purchase price constitutes 21 % of Thompson's structured settlement payments' present value, utilizing an applicable discount rate of 18.4%. Neither the present value Thompson would receive nor the discount rate it applies are fair and reasonable. (Matter ofNovation Funding LLC v Griffin, 39 Misc 3d 1207[A][Sup 3 [* 4] Ct, Kings County 2012)[16.66% discount rate was not fair and reasonable); Matter of Peachtree Settlement Funding LLC, 34 Misc 3d 1223[A][Sup Ct, Nassau County 2011)[16.66% discount rate with 58.10% of the discounted present value was not fair and reasonable]; Matter of Seneca One, LLC v Hall,_ Misc3d_ [Sup Ct, Nassau County 201 l)[transfer for less than half of the discounted present value was not fair and reasonable); Matter of Settlement Funding of New York, LLC, v New York Life Insurance & Annuity Corporation, _Misc3d_ [Sup Ct, New York County 2008][15% discount rate was not being fair and reasonable]; Matter of Stone Street Capital, LLC, _Misc3d_ [Sup Ct, Greene County 2008)(12.46% discount rate with-24% of discounted present value was not fair and reasonable]). Moreover, because CBC's attorney's claim that the applicable discount rate is below the national level was not alleged to be made upon his own personal knowledge it is of no probative value. (2 N. Street Corp. v Getty Saugerties Corp., supra). As such, Petitioners failed to demonstrate that this transfer is fair and reasonable. Accordingly, the petition is denied. This Decision and Order is being returned to the attorney for CBC. A copy of this Decision and Order and all other original papers submitted on this motion are being delivered to the Albany County Clerk for filing. The signing of this Decision and Order shall not constitute 4 [* 5] entry or filing under CPLR § 2220. Counsel is not relieved from the applicable provision of that section respecting filing, entry and notice of entry. So Ordered. Dated: '6, October 2013 Albany, New York Papers Considered: 1. Order to Show Cause dated July 11, 2013 ; Verified Petition dated July 2, 2013, with attached exhibits A-D; Letter from Vanetta Tompson dated August 21, 2013 with unnumbered exhibits; Letter from Vanetta Tompson dated October 1, 2013 with unnumbered exhibits. 5

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