2013 New York Consolidated Laws
CVP - Civil Practice Law & Rules
Article 50-B - (5041 - 5049) PERIODIC PAYMENT OF JUDGMENTS IN PERSONAL INJURY, INJURY TO PROPERTY AND WRONGFUL DEATH ACTIONS
5041 - Basis for determining judgment to be entered.

 
    §  5041.  Basis  for  determining  judgment to be entered. In order to
  determine what judgment is to be entered on a verdict in  an  action  to
  recover  damages  for  personal  injury,  injury to property or wrongful
  death under this article, and not subject to  article  fifty-A  of  this
  chapter, the court shall proceed as follows:
    (a)  The  court shall apply to the findings of past and future damages
  any applicable rules of law, including  set-offs,  credits,  comparative
  negligence  pursuant to section fourteen hundred eleven of this chapter,
  additurs, and remittiturs, in calculating the respective amounts of past
  and future damages claimants are entitled to recover and defendants  are
  obligated to pay.
    (b)  The  court shall enter judgment in lump sum for past damages, for
  future damages not in excess of two hundred fifty thousand dollars,  and
  for  any  damages,  fees or costs payable in lump sum or otherwise under
  subdivisions (c) and (d) of this  section.  For  the  purposes  of  this
  section,  any  lump  sum payment of a portion of future damages shall be
  deemed to include the elements of future damages in the same  proportion
  as  such  elements  comprise  of  the  total award for future damages as
  determined by the trier of fact.
    (c) Payment of litigation expenses and that portion of the  attorney's
  fees  related to past damages shall be payable in a lump sum. Payment of
  that portion of the attorney's fees related to future damages for which,
  pursuant to this article, the claimant is entitled to a lump sum payment
  shall also be payable in a lump sum. Payment  of  that  portion  of  the
  attorney's  fees  related  to the future periodically paid damages shall
  also be payable in a lump sum, based on the present value of the annuity
  contract purchased to provide payment of such future  periodically  paid
  damages pursuant to subdivision (e) of this section.
    (d)  Upon  election  of  a  subrogee  or  a  lien holder, including an
  employer or insurer who provides workers' compensation, filed within the
  time permitted by rule of court, any part of future damages allocable to
  reimbursement of payments previously made by the subrogee  or  the  lien
  holder  shall  be paid in lump sum to the subrogee or the lien holder in
  such amount as is calculable and determinable under the law in effect at
  the time of such payment.
    (e) With respect to awards of future damages in excess of two  hundred
  fifty  thousand  dollars  in  an  action to recover damages for personal
  injury, injury to property or wrongful  death,  the  court  shall  enter
  judgment as follows:
    After  making  any  adjustment prescribed by subdivisions (b), (c) and
  (d) of this section, the court shall enter a judgment for the amount  of
  the  present  value  of  an  annuity  contract that will provide for the
  payment  of  the  remaining  amounts  of  future  damages  in   periodic
  installments.  The present value of such contract shall be determined in
  accordance with generally accepted actuarial practices by  applying  the
  discount  rate  in effect at the time of the award to the full amount of
  the  remaining  future  damages,  as   calculated   pursuant   to   this
  subdivision.  The period of time over which such periodic payments shall
  be made and the period of time used to calculate the  present  value  of
  the  annuity  contract  shall  be  the period of years determined by the
  trier of fact in arriving at the itemized  verdict;  provided,  however,
  that  the period of time over which such periodic payments shall be made
  and the period of time used to calculate the present value  for  damages
  attributable  to  pain and suffering shall be ten years or the period of
  time determined by the trier of fact, whichever is less. The  court,  as
  part  of  its  judgment,  shall  direct  that  the  defendants and their
  insurance carriers shall be required  to  offer  and  to  guarantee  the
  purchase  and payment of such an annuity contract. Such annuity contract

  shall provide for the payment of the annual payments of  such  remaining
  future  damages  over  the  period  of  time determined pursuant to this
  subdivision. The annual payment for the first year shall  be  calculated
  by  dividing  the  remaining  amount  of future damages by the number of
  years over which such payments shall be made and the payment due in each
  succeeding year shall be computed by adding four percent to the previous
  year's payment. Where  payment  of  a  portion  of  the  future  damages
  terminates  in  accordance with the provisions of this article, the four
  percent added payment shall be based  only  upon  that  portion  of  the
  damages  that  remains  subject  to  continued payment. Unless otherwise
  agreed, the annual sum so arrived at shall  be  paid  in  equal  monthly
  installments and in advance.
    (f) With the consent of the claimant and any party liable, in whole or
  in part, for the judgment, the court shall enter judgment for the amount
  found  for  future  damages  attributable  to  said  party  as  such are
  determinable without regard to the provisions of this article.