Sweltz v. International Salt Co.

—Judgment unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court improperly entertained plaintiff’s motion made pursuant to CPLR 5044 to convert a judgment for periodic payments to a judgment for a lump sum. By its terms, it is apparent that CPLR 5044 applies only if the judgment provides for periodic payments. This is evident by the language that plaintiff may request an order requiring payment of "the outstanding payments in a lump sum,” and that "[i]n calculating the amount of the lump sum judgment, the court shall total the remaining periodic payments due and owing” (emphasis added).

With respect to the award for future damages in excess of $250,000, the judgment provided that judgment should be entered “for the amount of the present value of the annuity *1014contract that would provide for the payment of the remaining amounts of future damage in periodic payments.” This language permitted the entry of a judgment for a fixed sum. Although the judgment also provided, in accordance with the statute (CPLR 5041 [e]), that third-party defendant shall be required "to offer and to guarantee the purchase and payment of such an annuity contract”, there is no showing that plaintiff accepted any such offer. To the contrary, the motion papers show that plaintiff and third-party defendant agreed upon payment of a specified lump sum, which was computed by reducing the future payments to present value. Thus, because the judgment did not direct third-party defendant to make periodic payments, third-party defendant did not violate CPLR 5044 by failing to make any such payment.

We deem the appeal to be taken from the final judgment (see, Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988). (Appeal from Judgment of Supreme Court, Ontario County, Harvey, J. — Increase Damage Award.) Present — Denman, P. J., Boomer, Lawton, Fallon and Doerr, JJ.