NY CPLR § 5031 (2021)
2021 New York Laws CVP - Civil Practice Law and Rules Article 50-A - Periodic Payment of Judgments in Medical and Dental Malpractice Actions 5031 - Basis for Determining Judgment to Be Entered.

§  5031.  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  medical,  dental,  or  podiatric  malpractice, or damages for wrongful death as a result of medical, dental, or  podiatric malpractice, the court shall proceed as follows:  (a)  The  court shall apply to the findings of past and future damages any applicable rules of law regarding additurs and/or  remittiturs,  and adjust the verdict accordingly.  (b)  Awards  for  all  past  damages,  all  damages for future loss of services, all damages for future loss  of  consortium,  all  damages  in wrongful  death  actions,  and  damages for future pain and suffering of five hundred thousand dollars or less shall be paid in a  lump  sum.  In any  case in which all damages are to be paid in lump sums, the judgment shall be entered on the total of the lump sums, without  further  regard to this section.  (c) As to any award of damages for future pain and suffering in excess of  five hundred thousand dollars, the court shall determine the greater of thirty-five percent of such damages or five hundred thousand  dollars and such amount shall be paid in a lump sum. The remaining amount of the award  for  damages  for  future  pain  and suffering shall be paid in a stream of payments over the period of time determined by  the  trier  of fact  or  eight  years,  whichever  is  less. The stream of payments for future pain and suffering shall be calculated by dividing the  remaining amount  of  damages for future pain and suffering by the number of years over which such payments shall be made to  determine  the  first  year's payment and the payment due in each succeeding year shall be computed by adding  four  percent  to  the  previous year's payment. The court shall determine the present value of the stream  of  payments  by  applying  a discount rate to the stream of payments.  (d)  The  findings  of future economic and pecuniary damages except in wrongful death actions, shall be used to determine a stream of  payments for  each  such  item of damages by applying (i) the growth rate, to the (ii) annual amount in current dollars, for the (iii)  period  of  years, all of such items as determined by the finder of fact for each such item of damages. The court shall determine the present value of the stream of payments  for  each  such item of damages by applying a discount rate to the stream of payments. After  determining  the  present  value  of  the stream   of   payments   for  future  economic  and  pecuniary  damages, thirty-five percent of that present value shall be paid in a  lump  sum, and  the  stream  of  payments for future economic and pecuniary damages shall be adjusted accordingly by proportionately reducing each  item  of the  remaining  stream  of  payments  for  future economic and pecuniary damages and paying those amounts over time in the form of an annuity  in accordance  with  the  provisions  set  forth in subdivision (g) of this section,  subject  to  the  adjustments  and  deductions  specified   in subdivision (f) of this section.  (e)  The  discount rate to be used in determining the present value of all streams of payments for periods of up to twenty years shall  be  the rate  in effect for the ten-year United States Treasury Bond on the date of the verdict. As to any streams of payments for which  the  period  of years  exceeds twenty years, the discount rate to be used in determining the present value shall be calculated by averaging, on an annual  basis, the  rate  in effect for the ten-year United States Treasury Bond on the date of the verdict for the first twenty years and two percentage points above the rate in effect for the ten-year United States Treasury Bond on the date of the verdict for the years after twenty years.  (f) After making the applicable calculations set forth above:  (1) The court shall apply any set-offs for comparative negligence  and settlements  by  deducting  them  proportionately  from each item of the damages  awards,  including  the  lump   sum   payments   specified   in subdivisions (b), (c), and (d) of this section, and the present value of the  streams  of  payments  specified  in such subdivisions (c) and (d). After such  deductions,  the  streams  of  payments  specified  in  such subdivisions  (c)  and  (d)  and  their  present value shall be adjusted accordingly.  (2) The court  shall  then  deduct  the  litigation  expenses  of  the plaintiff's  attorney  proportionately  from  each remaining item of the damages awards, including the remaining lump sum payments  specified  in such  subdivisions  (b),  (c),  and  (d),  and  the present value of the remaining streams of payments specified in  such  subdivisions  (c)  and (d),  and  such  expenses  shall  be  paid  in  a  lump  sum. After said deductions, the streams of payments specified in such  subdivisions  (c) and (d) and their present value shall be adjusted accordingly.  (3)  The court shall then determine the attorney's fees based upon the remaining damages awards, including  the  remaining  lump  sum  payments specified  in such subdivisions (b), (c), and (d), and the present value of the remaining streams of payments specified in such subdivisions  (c) and (d). The attorney's fees shall be deducted proportionately from each item  of  the remaining damages awards, including the remaining lump sum payments specified in such subdivisions  (b),  (c),  and  (d),  and  the present  value  of  the  remaining streams of payments specified in such subdivisions (c) and (d), and such fees shall be paid  in  a  lump  sum. After  said  deductions,  the  stream  of  payments  specified  in  such subdivisions (c) and (d) and  their  present  value  shall  be  adjusted accordingly.  (4)  Any  liens  which  are not the subject of a separate award by the finder of fact shall then be deducted proportionately from each item  of the  remaining damages awards, including the remaining lump sum payments specified in such subdivisions (b), (c), and (d), and the present  value of  the remaining streams of payments specified in such subdivisions (c) and (d), and such liens  shall  be  paid  in  a  lump  sum.  After  said deductions,  the  stream  of payments specified in such subdivisions (c) and (d) and their present value shall be adjusted accordingly.  (g) The defendants and their insurance carriers shall be  required  to offer  and  to guarantee the purchase and payment of an annuity contract to make annual payments in equal monthly installments of  the  remaining streams  of  payments  specified in such subdivisions (c) and (d), after making the deductions and adjustments prescribed in subdivision  (f)  of this section. The annuity contract shall provide that the payments shall run from the date of the verdict (unless some other date is specified in the  verdict)  for  the period of years determined by the finder of fact (except the stream of payments for  future  pain  and  suffering,  which shall not exceed eight years) or the life of the plaintiff, whichever is shorter, except that:  (1)  awards  for  lost earnings shall be paid for the full term of the award determined by the finder of fact; and  (2) awards for any item of economic or pecuniary damages as  to  which the  finder  of fact found that the loss or item of damage is permanent, the payments for that item shall continue to run for the entire life  of the   plaintiff,  increasing  each  year  beyond  the  period  of  years determined by the finder of fact at the same growth rate  as  determined by the finder of fact.  (h)  The  judgment  shall  be entered on the lump sum payments and the present value of the streams of payments required  to  be  made  by  the defendants under this section.