S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   634

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  M. of A. WEINSTEIN, ORTIZ -- Multi-Sponsored by -- M. of
  A. BOYLAND, BRENNAN, CLARK, COOK, CYMBROWITZ, GLICK,  JAFFEE  --  read
  once and referred to the Committee on Judiciary

AN  ACT  to  amend  the civil practice law and rules and the surrogate's
  court procedure act, in relation to addressing delay in payment  of  a
  settlement where the settlement requires court approval

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 1207 of  the  civil  practice  law  and  rules,  as
amended  by  chapter  355  of  the  laws  of 1986, is amended to read as
follows:
  S 1207. Settlement of action or claim by infant,  judicially  declared
incompetent  or  conservatee,  by  whom motion made; special proceeding;
notice; order of settlement. (A) Upon motion of a guardian of the  prop-
erty or guardian ad litem of an infant or, if there is no such guardian,
then  of  a  parent having legal custody of an infant, or if there is no
such parent, by another person having legal custody, or if the infant is
married, by an adult spouse residing with the infant, or of the  commit-
tee  of  the property of a person judicially declared to be incompetent,
or of the conservator of the property of a conservatee,  the  court  may
order  settlement of any action commenced by or on behalf of the infant,
incompetent or conservatee. If no action has been commenced,  a  special
proceeding  may  be commenced upon petition of such a representative for
settlement of any claim by the infant, incompetent or conservatee in any
court where an action for the amount of the  proposed  settlement  could
have  been  commenced.    Unless otherwise provided by rule of the chief
administrator of the courts, if no motion term is being held  and  there
is  no  justice  of  the  supreme  court available in a county where the
action or an action on the claim is triable, such a motion may be  made,
or special proceeding may be commenced, in a county court and the county

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD03084-01-1

A. 634                              2

judge  shall  act  with the same power as a justice of the supreme court
even though the amount of the settlement may exceed  the  jurisdictional
limits  of  the  county court. Notice of the motion or petition shall be
given as directed by the court. An order on such a motion shall have the
effect  of a judgment. Such order, or the judgment in a special proceed-
ing, shall be entered without costs and shall approve the  fee  for  the
infant's, incompetent's or conservatee's attorney, if any.
  (B) SUCH ORDER, OR THE JUDGMENT IN A SPECIAL PROCEEDING, SHALL PROVIDE
FOR  THE  PAYMENT  OF INTEREST ON THE SETTLEMENT AMOUNT AT THE STATUTORY
INTEREST RATE ON JUDGMENTS, TO BE COMPUTED COMMENCING THE FIFTEENTH DAY,
OR WHERE THE SETTLING DEFENDANT IS A MUNICIPAL OR STATE  ENTITY  AS  SET
FORTH IN SUBDIVISION (B) OR (C) OF SECTION FIVE THOUSAND THREE-A OF THIS
CHAPTER  THEN COMMENCING FROM THE SIXTY-FIRST DAY FOLLOWING THE DAY THAT
THE PROPOSED SETTLEMENT IS ENTERED INTO AND  CONTINUING  UNTIL  THE  DAY
THAT  THE  ORDER  OR  JUDGMENT  IS SIGNED. WHERE THE PROPOSED SETTLEMENT
INCLUDES AN ANNUITY TO PROVIDE FOR PERIODIC PAYMENTS, INTEREST SHALL NOT
BE COMPUTED ON THE PRESENT  VALUE  OF  THE  ANNUITY  PROVIDED  THAT  THE
DEFENDANT  TIMELY  FUNDS  THE  ANNUITY, BUT INTEREST SHALL ACCRUE ON ANY
PERIODIC PAYMENT MADE LATER THAN THE PAYMENT SCHEDULE SET FORTH  IN  THE
PROPOSED SETTLEMENT. THE DATE AND TERMS OF THE PROPOSED SETTLEMENT SHALL
BE  SET  FORTH TO ALL COUNSEL OR PARTIES IN WRITING, OR IN A COURT TRAN-
SCRIPT, AND A COPY OF THE WRITING OR TRANSCRIPT SHALL BE PROVIDED TO THE
COURT IN ORDER TO CALCULATE THE DAYS OF INTEREST.
  S 2. Paragraphs 7 and 8 of subdivision (a) of rule 1208 of  the  civil
practice  law and rules, paragraph 7 as amended and paragraph 8 as added
by chapter 844 of the laws of 1968, are amended and a new paragraph 9 is
added to read as follows:
  7. whether reimbursement  for  medical  or  other  expenses  has  been
received from any source; [and]
  8.  whether the infant's or incompetent's representative or any member
of the infant's or incompetent's family has made  a  claim  for  damages
alleged  to have been suffered as a result of the same occurrence giving
rise to the infant's or incompetent's claim and, if so, the amount  paid
or  to be paid in settlement of such claim or if such claim has not been
settled the reasons therefor[.]; AND
  9. THE DAILY RATE OF INTEREST ON THE SETTLEMENT COMPUTED  PURSUANT  TO
SUBDIVISION  (B)  OF  SECTION TWELVE HUNDRED SEVEN OF THIS ARTICLE AND A
COPY OF THE COURT TRANSCRIPT OR WRITING SETTING FORTH THE DATE AND TERMS
OF THE PROPOSED SETTLEMENT.
  S 3. Rule 1208 of the civil practice  law  and  rules  is  amended  by
adding a new subdivision (g) to read as follows:
  (G)  DELIVERY  OF  ORDER.    UPON  SIGNING THE ORDER, OR JUDGMENT IN A
SPECIAL PROCEEDING, THE COURT SHALL SEND A COPY OF THE ORDER OR JUDGMENT
TO THE ATTORNEY REPRESENTING THE INFANT OR INCOMPETENT, OR IF  THERE  IS
NO ATTORNEY, TO THE REPRESENTATIVE OF THE INFANT OR INCOMPETENT.
  S  4.  Subdivisions  (a),  (b)  and (c) of section 5003-a of the civil
practice law and rules, as added by chapter 269 of the laws of 1992, are
amended to read as follows:
  (a) When an action to recover damages has been settled,  any  settling
defendant,  except  those defendants to whom subdivisions (b) and (c) of
this section apply, shall pay all sums due  to  any  settling  plaintiff
within  twenty-one  days,  OR IF IT IS AN ACTION WHICH REQUIRES JUDICIAL
APPROVAL OF SETTLEMENT, WITHIN FOURTEEN DAYS of tender, by the  settling
plaintiff  to  the  settling defendant, of a duly executed release and a
stipulation discontinuing action executed  on  behalf  of  the  settling
plaintiff.

A. 634                              3

  (b)  When an action to recover damages has been settled and the settl-
ing defendant is a municipality  or  any  subdivision  thereof,  or  any
public  corporation  that  is not indemnified by the state, it shall pay
all sums due to any settling plaintiff within ninety days, OR IF  IT  IS
AN  ACTION  WHICH REQUIRES JUDICIAL APPROVAL OF SETTLEMENT, WITHIN SIXTY
DAYS of tender, by the  settling  plaintiff  to  it,  of  duly  executed
release and a stipulation discontinuing action executed on behalf of the
settling plaintiff. The provisions of this [paragraph] SUBDIVISION shall
not  inure to the benefit of any insurance carrier for a municipality or
any subdivision thereof, or any public corporation that  is  not  indem-
nified  by  the state. Any such insurance carrier shall pay all sums due
to any settling plaintiff in accordance with the provisions of  subdivi-
sion (a) of this section.
  (c)  When an action to recover damages has been settled and the settl-
ing defendant is the state, an officer or employee of the state entitled
to indemnification pursuant to section seventeen of the public  officers
law,  or  a public benefit corporation indemnified by the state, payment
of all sums due to any settling plaintiff shall be  made  within  ninety
days,  OR IF IT IS AN ACTION WHICH REQUIRES JUDICIAL APPROVAL OF SETTLE-
MENT, WITHIN SIXTY DAYS of  the  comptroller's  determination  that  all
papers  required  to effectuate the settlement have been received by him
OR HER.  The provisions of this [paragraph] SUBDIVISION shall not  inure
to  the  benefit  of  any insurance carrier for the state, an officer or
employee of the state entitled to indemnification  pursuant  to  section
seventeen  of  the  public officers law, or a public benefit corporation
indemnified by the state. Any such insurance carrier shall pay all  sums
due  to  any  settling  plaintiff  in  accordance with the provisions of
subdivision (a) of this section.
  S 5. Section 2220 of the surrogate's court procedure act is amended by
adding a new subdivision 6 to read as follows:
  6. THE ORDER OR DECREE SHALL PROVIDE FOR THE PAYMENT  OF  INTEREST  ON
THE  SETTLEMENT  AMOUNT  AT  THE STATUTORY INTEREST ON JUDGMENT RATE PER
ANNUM, TO BE COMPUTED FROM THE FIFTEENTH  DAY,  OR  WHERE  THE  SETTLING
DEFENDANT IS A MUNICIPAL OR STATE ENTITY AS SET FORTH IN SUBDIVISION (B)
OR  (C)  OF  SECTION FIVE THOUSAND THREE-A OF THE CIVIL PRACTICE LAW AND
RULES, THEN FROM THE SIXTY-FIRST DAY FOLLOWING THE DAY THAT THE PROPOSED
SETTLEMENT IS ENTERED INTO AND CONTINUING UNTIL THE DAY THAT  THE  ORDER
OR JUDGMENT IS SIGNED. WHERE THE PROPOSED SETTLEMENT INCLUDES AN ANNUITY
TO  PROVIDE  FOR PERIODIC PAYMENT, INTEREST SHALL NOT BE COMPUTED ON THE
PRESENT VALUE OF THE ANNUITY PROVIDED THAT THE  DEFENDANT  TIMELY  FUNDS
THE  ANNUITY,  BUT  INTEREST  SHALL  ACCRUE ON ANY PERIODIC PAYMENT MADE
LATER THAN THE PAYMENT SCHEDULE SET FORTH IN  THE  PROPOSED  SETTLEMENT.
THE  DATE AND TERMS OF THE PROPOSED SETTLEMENT SHALL BE SET FORTH TO ALL
COUNSEL OR PARTIES IN WRITING, OR IN A COURT TRANSCRIPT, AND A  COPY  OF
THE  WRITING  OR  TRANSCRIPT  SHALL BE PROVIDED TO THE COURT IN ORDER TO
CALCULATE THE DAYS OF INTEREST.
  S 6. This act shall take effect on the first of January next  succeed-
ing the date on which it shall have become a law, and shall apply to all
actions settled on or after such effective date.