S T A T E O F N E W Y O R K
________________________________________________________________________
6923
I N S E N A T E
March 7, 2000
___________
Introduced by Sen. VOLKER -- (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 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:
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 S 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
24 even though the amount of the settlement may exceed the jurisdictional
25 limits of the county court. Notice of the motion or petition shall be
26 given as directed by the court. An order on such a motion shall have the
27 effect of a judgment. Such order, or the judgment in a special proceed-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD14981-01-0
S. 6923 2
1 ing, shall be entered without costs and shall approve the fee for the
2 infant`s, incompetent`s or conservatee`s attorney, if any.
3 (B) SUCH ORDER, OR THE JUDGMENT IN A SPECIAL PROCEEDING, SHALL PROVIDE
4 FOR THE PAYMENT OF INTEREST ON THE SETTLEMENT AMOUNT AT FOUR PERCENT PER
5 ANNUM OR THE STATUTORY INTEREST RATE ON JUDGMENTS, WHICHEVER IS LESS, TO
6 BE COMPUTED COMMENCING THE FIFTEENTH DAY, OR WHERE THE SETTLING DEFEND-
7 ANT IS A MUNICIPAL OR STATE ENTITY AS SET FORTH IN SUBDIVISION (B) OR
8 (C) OF SECTION FIVE THOUSAND THREE-A OF THIS CHAPTER THEN COMMENCING
9 FROM THE SIXTY-FIRST DAY FOLLOWING THE DAY THAT THE PROPOSED SETTLEMENT
10 IS ENTERED INTO AND CONTINUING UNTIL THE DAY THAT THE ORDER OR JUDGMENT
11 IS SIGNED. WHERE THE PROPOSED SETTLEMENT INCLUDES AN ANNUITY TO PROVIDE
12 FOR PERIODIC PAYMENTS, INTEREST SHALL NOT BE COMPUTED ON THE PRESENT
13 VALUE OF THE ANNUITY PROVIDED THAT THE DEFENDANT TIMELY FUNDS THE ANNUI-
14 TY, BUT INTEREST SHALL ACCRUE ON ANY PERIODIC PAYMENT MADE LATER THAN
15 THE PAYMENT SCHEDULE SET FORTH IN THE PROPOSED SETTLEMENT. THE DATE AND
16 TERMS OF THE PROPOSED SETTLEMENT SHALL BE SET FORTH TO ALL COUNSEL OR
17 PARTIES IN WRITING, OR IN A COURT TRANSCRIPT, AND A COPY OF THE WRITING
18 OR TRANSCRIPT SHALL BE PROVIDED TO THE COURT IN ORDER TO CALCULATE THE
19 DAYS OF INTEREST.
20 S 2. Paragraph 8 of subdivision (a) of rule 1208 of the civil practice
21 law and rules, as added by chapter 844 of the laws of 1968, is amended
22 to read as follows:
23 8. whether the infant`s or incompetent`s representative or any member
24 of the infant`s or incompetent`s family has made a claim for damages
25 alleged to have been suffered as a result of the same occurrence giving
26 rise to the infant`s or incompetent`s claim and, if so, the amount paid
27 or to be paid in settlement of such claim or if such claim has not been
28 settled the reasons therefor{.}; AND
29 S 3. Subdivision (a) of rule 1208 of the civil practice law and rules
30 is amended by adding a new paragraph 9 to read as follows:
31 9. THE DAILY RATE OF INTEREST ON THE SETTLEMENT COMPUTED PURSUANT TO
32 SUBDIVISION (B) OF SECTION TWELVE HUNDRED SEVEN OF THIS ARTICLE AND A
33 COPY OF THE COURT TRANSCRIPT OR WRITING SETTING FORTH THE DATE AND TERMS
34 OF THE PROPOSED SETTLEMENT.
35 S 4. Rule 1208 of the civil practice law and rules is amended by
36 adding a new subdivision (g) to read as follows:
37 (G) UPON SIGNING THE ORDER, OR JUDGMENT IN A SPECIAL PROCEEDING, THE
38 COURT WILL SEND A COPY OF THE ORDER OR JUDGMENT TO THE ATTORNEY REPRES-
39 ENTING THE INFANT OR INCOMPETENT, OR IF THERE IS NO ATTORNEY, TO THE
40 REPRESENTATIVE OF THE INFANT OR INCOMPETENT.
41 S 5. Subdivisions (a), (b), and (c) of section 5003-a of the civil
42 practice law and rules, as added by chapter 269 of the laws of 1992, are
43 amended to read as follows:
44 (a) When an action to recover damages has been settled, any settling
45 defendant, except those defendants to whom subdivisions (b) and (c) of
46 this section apply, shall pay all sums due to any settling plaintiff
47 within twenty-one days, OR IF IT IS AN ACTION WHICH REQUIRES JUDICIAL
48 APPROVAL OF SETTLEMENT, WITHIN FOURTEEN DAYS of tender, by the settling
49 plaintiff to the settling defendant, of a duly executed release and a
50 stipulation discontinuing action executed on behalf of the settling
51 plaintiff.
52 (b) When an action to recover damages has been settled and the settl-
53 ing defendant is a municipality or any subdivision thereof, or any
54 public corporation that is not indemnified by the state, it shall pay
55 all sums due to any settling plaintiff within ninety days, OR IF IT IS
56 AN ACTION WHICH REQUIRES JUDICIAL APPROVAL OF SETTLEMENT, WITHIN SIXTY
S. 6923 3
1 DAYS of tender, by the settling plaintiff to it, of duly executed
2 release and a stipulation discontinuing action executed on behalf of the
3 settling plaintiff. The provisions of this {paragraph} SUBDIVISION shall
4 not inure to the benefit of any insurance carrier for a municipality or
5 any subdivision thereof, or any public corporation that is not indem-
6 nified by the state. Any such insurance carrier shall pay all sums due
7 to any settling plaintiff in accordance with the provisions of subdivi-
8 sion (a) of this section.
9 (c) When an action to recover damages has been settled and the settl-
10 ing defendant is the state, an officer or employee of the state entitled
11 to indemnification pursuant to section seventeen of the public officers
12 law, or a public benefit corporation indemnified by the state, payment
13 of all sums due to any settling plaintiff shall be made within ninety
14 days, OR IF IT IS AN ACTION WHICH REQUIRES JUDICIAL APPROVAL OF SETTLE-
15 MENT, WITHIN SIXTY DAYS of the comptroller`s determination that all
16 papers required to effectuate the settlement have been received by him
17 OR HER. The provisions of this {paragraph} SUBDIVISION shall not inure
18 to the benefit of any insurance carrier for the state, an officer or
19 employee of the state entitled to indemnification pursuant to section
20 seventeen of the public officers law, or a public benefit corporation
21 indemnified by the state. Any such insurance carrier shall pay all sums
22 due to any settling plaintiff in accordance with the provisions of
23 subdivision (a) of this section.
24 S 6. Section 2220 of the surrogate`s court procedure act is amended by
25 adding a new subdivision 6 to read as follows:
26 6. THE ORDER OR DECREE SHALL PROVIDE FOR THE PAYMENT OF INTEREST ON
27 THE SETTLEMENT AMOUNT AT A RATE OF FOUR PERCENT OR OF THE STATUTORY
28 INTEREST ON JUDGMENT RATE PER ANNUM WHICHEVER IS LESS, TO BE COMPUTED
29 FROM THE FIFTEENTH DAY, OR WHERE THE SETTLING DEFENDANT IS A MUNICIPAL
30 OR STATE ENTITY AS SET FORTH IN SUBDIVISION (B) OR (C) OF SECTION 5003-A
31 OF THE CIVIL PRACTICE LAW AND RULES, THEN FROM THE SIXTY-FIRST DAY
32 FOLLOWING THE DAY THAT THE PROPOSED SETTLEMENT IS ENTERED INTO AND
33 CONTINUING UNTIL THE DAY THAT THE ORDER OR JUDGMENT IS SIGNED. WHERE THE
34 PROPOSED SETTLEMENT INCLUDES AN ANNUITY TO PROVIDE FOR PERIODIC
35 PAYMENTS, INTEREST SHALL NOT BE COMPUTED ON THE PRESENT VALUE OF THE
36 ANNUITY PROVIDED THAT THE DEFENDANT TIMELY FUNDS THE ANNUITY, BUT INTER-
37 EST SHALL ACCRUE ON ANY PERIODIC PAYMENT MADE LATER THAN THE PAYMENT
38 SCHEDULE SET FORTH IN THE PROPOSED SETTLEMENT. THE DATE AND TERMS OF THE
39 PROPOSED SETTLEMENT SHALL BE SET FORTH TO ALL COUNSEL OR PARTIES IN
40 WRITING, OR IN A COURT TRANSCRIPT, AND A COPY OF THE WRITING OR TRAN-
41 SCRIPT SHALL BE PROVIDED TO THE COURT IN ORDER TO CALCULATE THE DAYS OF
42 INTEREST.
43 S 7. This act shall take effect on the first day of January next
44 succeeding the date on which it shall have become law, and shall apply
45 to all actions settled on or after such date.
.SO DOC S 6923 *END* BTXT 1999
Bill S06923
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