§ 5041 — Basis for determining judgment to be entered

New York § 5041

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 50-B: Periodic Payment of Judgments In Personal Injury, Injury to Property and Wrongful Death Actions

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§ 5041. Basis for determining judgment to be entered. In order to\ndetermine what judgment is to be entered on a verdict in an action to\nrecover damages for personal injury, injury to property or wrongful\ndeath under this article, and not subject to article fifty-A of this\nchapter, the court shall proceed as follows:\n (a) The court shall apply to the findings of past and future damages\nany applicable rules of law, including set-offs, credits, comparative\nnegligence pursuant to section fourteen hundred eleven of this chapter,\nadditurs, and remittiturs, in calculating the respective amounts of past\nand future damages claimants are entitled to recover and defendants are\nobligated to pay.\n (b) The court shall enter judgment in lump sum for past damages, for\nfuture damages not in excess of two hundred fifty thousand dollars, and\nfor any damages, fees or costs payable in lump sum or otherwise under\nsubdivisions (c) and (d) of this section. For the purposes of this\nsection, any lump sum payment of a portion of future damages shall be\ndeemed to include the elements of future damages in the same proportion\nas such elements comprise of the total award for future damages as\ndetermined by the trier of fact.\n (c) Payment of litigation expenses and that portion of the attorney's\nfees related to past damages shall be payable in a lump sum. Payment of\nthat portion of the attorney's fees related to future damages for which,\npursuant to this article, the claimant is entitled to a lump sum payment\nshall also be payable in a lump sum. Payment of that portion of the\nattorney's fees related to the future periodically paid damages shall\nalso be payable in a lump sum, based on the present value of the annuity\ncontract purchased to provide payment of such future periodically paid\ndamages pursuant to subdivision (e) of this section.\n (d) Upon election of a subrogee or a lien holder, including an\nemployer or insurer who provides workers' compensation, filed within the\ntime permitted by rule of court, any part of future damages allocable to\nreimbursement of payments previously made by the subrogee or the lien\nholder shall be paid in lump sum to the subrogee or the lien holder in\nsuch amount as is calculable and determinable under the law in effect at\nthe time of such payment.\n (e) With respect to awards of future damages in excess of two hundred\nfifty thousand dollars in an action to recover damages for personal\ninjury, injury to property or wrongful death, the court shall enter\njudgment as follows:\n After making any adjustment prescribed by subdivisions (b), (c) and\n(d) of this section, the court shall enter a judgment for the amount of\nthe present value of an annuity contract that will provide for the\npayment of the remaining amounts of future damages in periodic\ninstallments. The present value of such contract shall be determined in\naccordance with generally accepted actuarial practices by applying the\ndiscount rate in effect at the time of the award to the full amount of\nthe remaining future damages, as calculated pursuant to this\nsubdivision. The period of time over which such periodic payments shall\nbe made and the period of time used to calculate the present value of\nthe annuity contract shall be the period of years determined by the\ntrier of fact in arriving at the itemized verdict; provided, however,\nthat the period of time over which such periodic payments shall be made\nand the period of time used to calculate the present value for damages\nattributable to pain and suffering shall be ten years or the period of\ntime determined by the trier of fact, whichever is less. The court, as\npart of its judgment, shall direct that the defendants and their\ninsurance carriers shall be required to offer and to guarantee the\npurchase and payment of such an annuity contract. Such annuity contract\nshall provide for the payment of the annual payments of such remaining\nfuture damages over the period of time determined pursuant to this\nsubdivision. The annual payment for the first year shall be calculated\nby dividing the remaining amount of future damages by the number of\nyears over which such payments shall be made and the payment due in each\nsucceeding year shall be computed by adding four percent to the previous\nyear's payment. Where payment of a portion of the future damages\nterminates in accordance with the provisions of this article, the four\npercent added payment shall be based only upon that portion of the\ndamages that remains subject to continued payment. Unless otherwise\nagreed, the annual sum so arrived at shall be paid in equal monthly\ninstallments and in advance.\n (f) With the consent of the claimant and any party liable, in whole or\nin part, for the judgment, the court shall enter judgment for the amount\nfound for future damages attributable to said party as such are\ndeterminable without regard to the provisions of this article.\n