S T A T E O F N E W Y O R K
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281
2015-2016 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2015
___________
Introduced by M. of A. WEINSTEIN, ORTIZ -- Multi-Sponsored by -- M. of
A. BRENNAN, 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.
LBD00108-01-5
A. 281 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. 281 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 RATE ON JUDGMENTS, 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 ANNUI-
TY, 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.