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This entry was published on 2014-09-22
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SECTION 5041
Basis for determining judgment to be entered
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 50-B
§ 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.