New York State Court of Claims

New York State Court of Claims

DuPont v. STATE OF NEW YORK, #2009-018-040, Claim No. 108040, Motion No. M-76649


Synopsis


Claimant brings a post-judgment motion seeking to compel a lump sum payment of the judgment pursuant to CPLR 5036. Claimant cannot and did not establish that unanticipated medical, dental or other needs have arisen warranting payment in a lump sum. The Court, restrained by the requirements of CPLR 5036, must DENY Claimant’s motion.

Case Information

UID:
2009-018-040
Claimant(s):
KAYLA DuPONT, an Infant Under the Age of Ten Years by and through MARY and MICHAEL T. DuPONT, her Parents and Natural Guardians
Claimant short name:
DuPont
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108040
Motion number(s):
M-76649
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
FELDMAN, SHEPHERD, WOHLGELERNTER, TANNER, WEINSTOCK & DODIG
By: Daniel S. Weinstock, Esquire
Edward S. Goldis, Esquire

BOTTAR LEONEBy: Edward S. Leone, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Michael R. O’Neill, Esquire Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 31, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a post-judgment motion seeking to compel a lump sum payment of the judgment[1] pursuant to CPLR 5036. Defendant opposes the motion. The Court heard oral arguments on the motion and took testimony from witnesses.

The claim was brought on behalf of the infant as a result of medical malpractice. After a lengthy trial, the Court found the Defendant 100 percent liable for the injuries suffered by Kayla DuPont. The award of $14,833,811 reflects the severe, extensive and catastrophic damages suffered by Kayla.

Following the trial Decision, the parties entered into a Stipulated Order directing entry of a CPLR Article 50-A Judgment, which was filed on November 24, 2008. A final judgment was entered on December 4, 2008. The stipulated Order and the judgment directed a lump sum payment of $2,944,264 representing $1,200,000 for past pain and suffering; $250,000 as the lump sum portion of future damages; $1,414,608 for attorneys’ fees, and $79,656 for expenses and disbursements. The balance of the award was to be paid out periodically in accordance with CPLR Article 50-A with Defendant purchasing an annuity to fund these future payments. In lieu of these periodic payments, Claimant now seeks a lump sum payment of the amount needed to fund the annuity, plus accrued interest to date. CPLR 5036 provides in pertinent part:

(a) If, at any time after entry of judgment, a judgment creditor
or successor in interest can establish that the continued payment of the judgment in periodic installments will impose a hardship, the court may, in its discretion, order that the remaining payments or a portion thereof shall be made to the judgment creditor in a lump sum. The court shall, before entering such an order, find that: (i) unanticipated and substantial medical, dental or other needs have arisen that warrant the payment of the remaining payments, or a portion thereof, in a lump sum; (ii) ordering such a lump sum payment would not impose an unreasonable financial burden on the judgment debtor or debtors; (iii) ordering such a lump sum payment will accommodate the future medical and other needs of the judgment creditor; and (iv) ordering such a lump sum payment would further the interests of justice.

It is Claimant’s burden on this motion to establish the statutory criteria which would permit the Court to order the payments be made in a lump sum. The initial consideration is whether payments in periodic installments will impose a hardship on Kayla. Despite great effort and presentation, Claimant has failed to meet this initial threshold. Although a lump sum payment might best accommodate Kayla’s future needs, payments made by periodic installments will not impose a hardship. Even if the Court could get beyond this initial factor, Claimant cannot and did not establish that unanticipated medical, dental or other needs have arisen warranting payment in a lump sum.

Accordingly, the Court, restrained by the requirements of CPLR 5036, must DENY Claimant’s motion.











August 31, 2009
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Unsworn, unaffirmed 14-page history of this claim signed by Daniel S. Weinstock, Esquire, in support, with exhibits attached thereto.

2. Affirmation of Michael R. O’Neill, Esquire, Assistant Attorney General, in opposition with exhibits attached thereto.




[1].DuPont v State of New York, Claim No. 108040, Fitzpatrick, J., dated April 22, 2008 [UID #2008-018-602].