N.Y. Civil Practice Law & Rules § 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.