2023 New York Laws › CVP - Civil Practice Law and Rules › Article 50-B - 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.