N.Y. CPLR § 5031

NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only CPLR § 5031 Basis for determining judgment to be entered § 5031. Basis for determining judgment to be entered. In order todetermine what judgment is to be entered on a verdict in an action torecover damages for medical, dental, or podiatric malpractice, ordamages for wrongful death as a result of medical, dental, or podiatricmalpractice, the court shall proceed as follows:(a) The court shall apply to the findings of past and future damagesany applicable rules of law regarding additurs and/or remittiturs, andadjust the verdict accordingly.(b) Awards for all past damages, all damages for future loss ofservices, all damages for future loss of consortium, all damages inwrongful death actions, and damages for future pain and suffering offive hundred thousand dollars or less shall be paid in a lump sum. Inany case in which all damages are to be paid in lump sums, the judgmentshall be entered on the total of the lump sums, without further regardto this section.(c) As to any award of damages for future pain and suffering in excessof five hundred thousand dollars, the court shall determine the greaterof thirty-five percent of such damages or five hundred thousand dollarsand such amount shall be paid in a lump sum. The remaining amount of theaward for damages for future pain and suffering shall be paid in astream of payments over the period of time determined by the trier offact or eight years, whichever is less. The stream of payments forfuture pain and suffering shall be calculated by dividing the remainingamount of damages for future pain and suffering by the number of yearsover which such payments shall be made to determine the first year'spayment and the payment due in each succeeding year shall be computed byadding four percent to the previous year's payment. The court such payments shall be made to determine the first year'spayment and the payment due in each succeeding year shall be computed byadding four percent to the previous year's payment. The court shalldetermine the present value of the stream of payments by applying adiscount rate to the stream of payments.(d) The findings of future economic and pecuniary damages except inwrongful death actions, shall be used to determine a stream of paymentsfor each such item of damages by applying (i) the growth rate, to the(ii) annual amount in current dollars, for the (iii) period of years,all of such items as determined by the finder of fact for each such itemof damages. The court shall determine the present value of the stream ofpayments for each such item of damages by applying a discount rate tothe stream of payments. After determining the present value of thestream of payments for future economic and pecuniary damages,thirty-five percent of that present value shall be paid in a lump sum,and the stream of payments for future economic and pecuniary damagesshall be adjusted accordingly by proportionately reducing each item ofthe remaining stream of payments for future economic and pecuniarydamages and paying those amounts over time in the form of an annuity inaccordance with the provisions set forth in subdivision (g) of thissection, subject to the adjustments and deductions specified insubdivision (f) of this section.(e) The discount rate to be used in determining the present value ofall streams of payments for periods of up to twenty years shall be therate in effect for the ten-year United States Treasury Bond on the dateof the verdict. As to any streams of payments for which the period ofyears exceeds twenty years, the discount rate to be used in determiningthe present value shall be calculated by averaging, on an annual basis,the rate in effect for the ten-year United States Treasury Bond enty years, the discount rate to be used in determiningthe present value shall be calculated by averaging, on an annual basis,the rate in effect for the ten-year United States Treasury Bond on thedate of the verdict for the first twenty years and two percentage pointsabove the rate in effect for the ten-year United States Treasury Bond onthe date of the verdict for the years after twenty years.(f) After making the applicable calculations set forth above:(1) The court shall apply any set-offs for comparative negligence andsettlements by deducting them proportionately from each item of thedamages awards, including the lump sum payments specified insubdivisions (b), (c), and (d) of this section, and the present value ofthe streams of payments specified in such subdivisions --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only (c) and (d).After such deductions, the streams of payments specified in suchsubdivisions (c) and (d) and their present value shall be adjustedaccordingly.(2) The court shall then deduct the litigation expenses of theplaintiff's attorney proportionately from each remaining item of thedamages awards, including the remaining lump sum payments specified insuch subdivisions (b), (c), and (d), and the present value of theremaining streams of payments specified in such subdivisions (c) and(d), and such expenses shall be paid in a lump sum. After saiddeductions, the streams of payments specified in such subdivisions (c)and (d) and their present value shall be adjusted accordingly.(3) The court shall then determine the attorney's fees based upon theremaining damages awards, including the remaining lump sum paymentsspecified in such subdivisions (b), (c), and (d), and the present valueof the remaining streams of payments specified in such subdivisions (c)and (d ning lump sum paymentsspecified in such subdivisions (b), (c), and (d), and the present valueof the remaining streams of payments specified in such subdivisions (c)and (d). The attorney's fees shall be deducted proportionately from eachitem of the remaining damages awards, including the remaining lump sumpayments specified in such subdivisions (b), (c), and (d), and thepresent value of the remaining streams of payments specified in suchsubdivisions (c) and (d), and such fees shall be paid in a lump sum.After said deductions, the stream of payments specified in suchsubdivisions (c) and (d) and their present value shall be adjustedaccordingly.(4) Any liens which are not the subject of a separate award by thefinder of fact shall then be deducted proportionately from each item ofthe remaining damages awards, including the remaining lump sum paymentsspecified in such subdivisions (b), (c), and (d), and the present valueof the remaining streams of payments specified in such subdivisions (c)and CPLR § 5031 Page 2 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only (d), and such liens shall be paid in a lump sum. After saiddeductions, the stream of payments specified in such subdivisions (c)and (d) and their present value shall be adjusted accordingly.(g) The defendants and their insurance carriers shall be required tooffer and to guarantee the purchase and payment of an annuity contractto make annual payments in equal monthly installments of the remainingstreams of payments specified in such subdivisions (c) and (d), aftermaking the deductions and adjustments prescribed in subdivision (f) ofthis section. The annuity contract shall provide that the payments shallrun from the date of the verdict (unless some other date is specified inthe verdict) for the pe d in subdivision (f) ofthis section. The annuity contract shall provide that the payments shallrun from the date of the verdict (unless some other date is specified inthe verdict) for the period of years determined by the finder of fact(except the stream of payments for future pain and suffering, whichshall not exceed eight years) or the life of the plaintiff, whichever isshorter, except that:(1) awards for lost earnings shall be paid for the full term of theaward determined by the finder of fact; and(2) awards for any item of economic or pecuniary damages as to whichthe finder of fact found that the loss or item of damage is permanent,the payments for that item shall continue to run for the entire life ofthe plaintiff, increasing each year beyond the period of yearsdetermined by the finder of fact at the same growth rate as determinedby the finder of fact.(h) The judgment shall be entered on the lump sum payments and thepresent value of the streams of payments required to be made by thedefendants under this section. 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