RETRIEVE BILL
STATE OF NEW YORK
________________________________________________________________________
5005
2003-2004 Regular Sessions
IN SENATE
May 9, 2003
___________
Introduced by Sen. DeFRANCISCO -- (at request of the Judiciary) -- read
twice and ordered printed, and when printed to be committed to the
Committee on Codes
AN ACT to amend the civil practice law and rules, 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:
1 Section 1. Section 1207 of the civil practice law and rules, as
2 amended by chapter 355 of the laws of 1986, is amended to read as
3 follows:
4 § 1207. Settlement of action or claim by infant, judicially declared
5 incompetent or conservatee, by whom motion made; special proceeding;
6 notice; order of settlement. (a) Upon motion of a guardian of the prop-
7 erty or guardian ad litem of an infant or, if there is no such guardian,
8 then of a parent having legal custody of an infant, or if there is no
9 such parent, by another person having legal custody, or if the infant is
10 married, by an adult spouse residing with the infant, or of the commit-
11 tee of the property of a person judicially declared to be incompetent,
12 or of the conservator of the property of a conservatee, the court may
13 order settlement of any action commenced by or on behalf of the infant,
14 incompetent or conservatee. If no action has been commenced, a special
15 proceeding may be commenced upon petition of such a representative for
16 settlement of any claim by the infant, incompetent or conservatee in any
17 court where an action for the amount of the proposed settlement could
18 have been commenced. Unless otherwise provided by rule of the chief
19 administrator of the courts, if no motion term is being held and there
20 is no justice of the supreme court available in a county where the
21 action or an action on the claim is triable, such a motion may be made,
22 or special proceeding may be commenced, in a county court and the county
23 judge shall act with the same power as a justice of the supreme court
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11617-01-3
S. 5005 2
1 even though the amount of the settlement may exceed the jurisdictional
2 limits of the county court. Notice of the motion or petition shall be
3 given as directed by the court. An order on such a motion shall have the
4 effect of a judgment. Such order, or the judgment in a special proceed-
5 ing, shall be entered without costs and shall approve the fee for the
6 infant's, incompetent's or conservatee's attorney, if any.
7 (b) Such order, or the judgment in a special proceeding, shall provide
8 for the payment of interest on the settlement amount at four percent per
9 annum or the statutory interest rate on judgments, whichever is less, to
10 be computed commencing the fifteenth day, or where the settling defend-
11 ant is a municipal or state entity as set forth in subdivision (b) or
12 (c) of section five thousand three-a of this chapter then commencing
13 from the sixty-first day following the day that the proposed settlement
14 is entered into and continuing until the day that the order or judgment
15 is signed. Where the proposed settlement includes an annuity to provide
16 for periodic payments, interest shall not be computed on the present
17 value of the annuity provided that the defendant timely funds the annui-
18 ty, but interest shall accrue on any periodic payment made later than
19 the payment schedule set forth in the proposed settlement. The date and
20 terms of the proposed settlement shall be set forth to all counsel or
21 parties in writing, or in a court transcript, and a copy of the writing
22 or transcript shall be provided to the court in order to calculate the
23 days of interest.
24 § 2. Paragraph 8 of subdivision (a) of rule 1208 of the civil practice
25 law and rules, as amended by chapter 844 of the laws of 1968, is amended
26 to read as follows:
27 8. whether the infant's or incompetent's representative or any member
28 of the infant's or incompetent's family has made a claim for damages
29 alleged to have been suffered as a result of the same occurrence giving
30 rise to the infant's or incompetent's claim and, if so, the amount paid
31 or to be paid in settlement of such claim or if such claim has not been
32 settled the reasons therefor[.]; and
33 § 3. Subdivision (a) of rule 1208 of the civil practice law and rules
34 is amended by adding a new paragraph 9 to read as follows:
35 9. the daily rate of interest on the settlement computed pursuant to
36 subdivision (b) of section twelve hundred seven of this article and a
37 copy of the court transcript or writing setting forth the date and terms
38 of the proposed settlement.
39 § 4. Rule 1208 of the civil practice law and rules is amended by
40 adding a new subdivision (g) to read as follows:
41 (g) Upon signing the order, or judgment in a special proceeding, the
42 court will send a copy of the order or judgment to the attorney repres-
43 enting the infant or incompetent, or if there is no attorney, to the
44 representative of the infant or incompetent.
45 § 5. Subdivisions (a), (b) and (c) of section 5003-a of the civil
46 practice law and rules, as added by chapter 269 of the laws of 1992, are
47 amended to read as follows:
48 (a) When an action to recover damages has been settled, any settling
49 defendant, except those defendants to whom subdivisions (b) and (c) of
50 this section apply, shall pay all sums due to any settling plaintiff
51 within twenty-one days, or if it is an action which requires judicial
52 approval of settlement, within fourteen days of tender, by the settling
53 plaintiff to the settling defendant, of a duly executed release and a
54 stipulation discontinuing action executed on behalf of the settling
55 plaintiff.
S. 5005 3
1 (b) When an action to recover damages has been settled and the settl-
2 ing defendant is a municipality or any subdivision thereof, or any
3 public corporation that is not indemnified by the state, it shall pay
4 all sums due to any settling plaintiff within ninety days, or if it is
5 an action which requires judicial approval of settlement, within sixty
6 days of tender, by the settling plaintiff to it, of duly executed
7 release and a stipulation discontinuing action executed on behalf of the
8 settling plaintiff. The provisions of this paragraph shall not inure to
9 the benefit of any insurance carrier for a municipality or any subdivi-
10 sion thereof, or any public corporation that is not indemnified by the
11 state. Any such insurance carrier shall pay all sums due to any settling
12 plaintiff in accordance with the provisions of subdivision (a) of this
13 section.
14 (c) When an action to recover damages has been settled and the settl-
15 ing defendant is the state, an officer or employee of the state entitled
16 to indemnification pursuant to section seventeen of the public officers
17 law, or a public benefit corporation indemnified by the state, payment
18 of all sums due to any settling plaintiff shall be made within ninety
19 days, or if it is an action which requires judicial approval of settle-
20 ment, within sixty days of the comptroller's determination that all
21 papers required to effectuate the settlement have been received by him
22 or her. The provisions of this paragraph shall not inure to the benefit
23 of any insurance carrier for the state, an officer or employee of the
24 state entitled to indemnification pursuant to section seventeen of the
25 public officers law, or a public benefit corporation indemnified by the
26 state. Any such insurance carrier shall pay all sums due to any settling
27 plaintiff in accordance with the provisions of subdivision (a) of this
28 section.
29 § 6. Section 2220 of the surrogate's court procedure act is amended by
30 adding a new subdivision 6 to read as follows:
31 6. The order or decree shall provide for the payment of interest on
32 the settlement amount at a rate of four percent or of the statutory
33 interest on judgment rate per annum whichever is less, to be computed
34 from the fifteenth day, or where the settling defendant is a municipal
35 or state entity as set forth in subdivision (b) or (c) of section five
36 thousand three-a of the civil practice law and rules, then from the
37 sixty-first day following the day that the proposed settlement is
38 entered into and continuing until the day that the order or judgment is
39 signed. Where the proposed settlement includes an annuity to provide for
40 periodic payments, interest shall not be computed on the present value
41 of the annuity provided that the defendant timely funds the annuity, but
42 interest shall accrue on any periodic payment made later than the
43 payment schedule set forth in the proposed settlement. The date and
44 terms of the proposed settlement shall be set forth to all counsel or
45 parties in writing, or in a court transcript, and a copy of the writing
46 or transcript shall be provided to the court in order to calculate the
47 days of interest.
48 § 7. This act shall take effect on the first of January next succeed-
49 ing the date on which it shall have become a law, and shall apply to all
50 actions settled on or after such date.