The following papers numbered 1 to 4 read on this motion:

Papers Numbered

Notice of Motion/Order to Show Cause

Affidavits (Affirmations) Annexed1-2,

Opposing Affidavits (Affirmations)

Reply Affidavits (Affirmations)

After oral argument, two conferences, an order issued by this Court on October 17, 2012 denying an application by Order to Show Cause from Petitioner with leave to renew grounded upon the Interested Person herein obtaining financial advice, and a renewal of this matter based upon the Interested Person (Deandre Irvin) having obtained such advice, the Court again determined on December 17, 2012, that the amount to be received by Deandre Irvin from the petitioner in return for the transfer of his structured settlement was unconscionable, and thus the petition was denied.

Petitioner moves the court for reargument pursuant to CPLR §2221(e) and/or to amend the court's order of December 17, 2012, to show the actual amount of the payments to be purchased as being $120,147.60, and not the amount found in the [*2]subject decision which was $340,240.00. Petitioner also moved for an order pursuant to GOL §5-1706 finding that the Transfer of Structured Settlement Payment Rights from Deandre Irvin to Petitioner be approved as having met the requirements of GOL §5-1706.

The grounds upon which petitioner's argument is based is that the court misapprehended the amount of the structured settlement to be transferred, and therefore the proposed transfer is not "unconscionable" as the Court found. Although many different amounts constituting the entire structured settlement were discussed by the Court and the petitioner, the petitioner avers that the total amount of the structure settlement sought to be purchased and owned by Deandre Irvin is " $120,147.60, payable in monthly installments of $1001.23 beginning 18 years in the future (2031) and lasting for 10 years until 2041, 28 years in the future, for an immediate cash payment to Mr. Irvin of $8,000.00. " (Pet. Aff. In Support, paragraph 10.) The Court agrees that the amount to be purchased for $8,000.00 by petitioner is $120,147.60.

To be clear the subject Order states as follows:

ORDERED, that Defendants PAUL E. MCCLUNG, M.D.and JACQUES ANTOINE, M.D. or their insurance carriers shall pay, within twenty-one days, pursuant to CPLR §5003-a, the sum of SEVEN HUNDRED FIFTY THOUSAND DOLLARS and 00/100 ($750,000.00) as follows:

(1) TWO HUNDRED AND FORTY THOUSAND DOLLARS AND 00/100 (240,00.00) to fund a structured settlement for the benefits of Wayne Irwin, Deandre Irwin and Aaron Irwin, under the terms hereafter set forth,

A. For Wayne Irwin, a guaranteed payment of $199,396.82 paid on April 20, 2031;

B. For Aaron Irvin, a guaranteed payment of $1999,396.82 paid on April 20, 2031; and

C. For Deandre Irvin, $1001.23 monthly for life, guaranteed for twenty (20) years, beginning on April 17, 2031. (Emphasis supplied)

This Order states that "Deandre Irvin will receive $1001.23 monthly for life, guaranteed for twenty (20) years beginning April 17, 2031." $1001.23 times 12 months per year equals $12,014.75 per year times 20 years which totals $240,295.20. In return for transferring all rights to petitioner for the first ten (10) years of payments or payments totaling $120,147.50, petitioner purposes to pay Deandre Irvin the sum of $8,000.00. Of course, this means that Deandre Irvin will not receive any payments until the year 2041 at age fifty-four (54). Further, the Court has learned that Deandre Irvin received the sum of $100,107.70 in a distributive share pursuant to EPTL 5-4,4 on or around December 2011. Thus, eighteen months ago, Deandre Irvin received over $100,000.00 and has provided no accounting to this Court as to how these funds were used, nor why he is now seeking to forgo $120,147.75 in future payments to receive $8,000.00 today pay rental arrears and utilities.

This proposal shocks the conscience of the Court, and thus upon reargument, the court again denies petitioner's motion to order a Transfer of Structured Settlement Payment Rights totaling $120,147,75 from Deandre Irvin to petitioner for the sum of $8,000.00.

In the instant matter, the three young adult children of Helen Irvin received structured settlements as a result of a wrongful death action against a hospital and physicians. In addition to the structured settlements, each of the three young adult children also received $100,107.70 in a distributive share pursuant to EPTL 5-4,4 on or around September 30, 2011.

Pursuant to GOL section 5-1706, the following provisions are found:

No direct or indirect transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shall be required to make any payments directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been authorized in advance in a final order of a court of competent jurisdiction based upon express findings by such court that:

(a) the transfer complies with the requirements of this title:

(b) the transfer is in the best interest of the payee, taking into account the welfare and support of the payee's dependents; and whether the transaction, including the discount rate used to determine the gross advance amount and the fees and expenses used to determine the net advance amount, are fair and reasonable. Provided the court makes the findings as outlined in the subdivision, there is no requirement for the court to find that an applicant is suffering from a hardship to approve the transfer of structured settlement payments under this subdivision;

( c) the payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received such advice or knowingly waived such advice in writing;

(d) the transfer does not contravene any applicable statute or the order of any court or other government authority; and [*4]

(e) is written in plain language and in compliance with Section 5-702 of this Article.

A review of the Petitioner's papers demonstrates many areas of concern for this Court. First, it is hard to know whether "the transfer complies with the requirements of this title", as the New York Disclosure Statement is not written in plain language. There is no explanation for the many terms found in the Statement such as the "discounted present value" of the "aggregate Purchased Payments". This sentence, "The discounted present value is the calculation of the current value of the transferred structured settlement payments (Purchased Payments) under federal standards for valuing annuities", can hardly be said to be written in plain English such that a lay person can "read and understand" its meaning. The rest of the disclosure statement is equally as confusing and subject to misinterpretation as the sentence mentioned above. Thus, there is no compliance with GOL §5-1706(e).

Second, part (b) requires that the transfer be in the "best interest" of the payee. The only information received from the payee is an affidavit which states that he resides in Brooklyn, New York; that he is 26 years old, is single and has no minor children; that he is unemployed and seeking employment, and has no other source of income. He plans to use $5,250.00 to pay off the remainder of his apartment lease as he is not current with rental payments. Mr. Irvin states that his rent is $1050.00 per month and his utility arrears total $850.00

During oral argument on this day, Mr. Irvin revealed for the first time that he does have an infant daughter. Thus, the court must also consider his dependent's welfare and support. Mr. Irvin has not provided the Court with any information about his prior employment, nor where or what kind of employment he is seeking. He states: "I do not have any other assets or credit resources to finance these needs.

The court is aware that pursuant to the Decree signed by Hon. Diana A. Johnson as Surrogate on September 29, 2011, File No. 2006-03280/A and provided by petitioner as part of Exhibit E to his Motion to Reargue, Mr. Irvin received a total of $100,107.23 as his distributive share sometime before December 2011. Neither Mr. Irvin nor his attorney mentioned this fact to the Court. Having not made mention of the funds, no explanation has been provided as to why Mr. Irvin has no other assets or credit resources to finances his needs.

Part B further provides that the petitioner demonstrate "whether the transaction, including the discount rate used to determine the gross advance amount and the fees and expenses used to determine the net advance amount, are fair and reasonable". Petitioner has offered no information as to whether the rate was "fair and reasonable." J.G. Wentworth Originations. LLC and Rymell Lynn, et al, 36 Misc 3d 1202(A), 2012 WL 2383351 (N.Y.Supp.). See also, Settlement Funding of New York, LL v. Transamerica Annuity Service Corporation, 23 Misc 3d 111(A), 2009 WL 1018703 (N.Y.Sup.) [*5]

Part ( c) requires that the "payee be advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received such advice or knowingly waived such advice in writing". Petitioner and Mr. Irvin first appeared on October 12, 2012 seeking Court approval on the proposed transfer. During a conference with petitioner and Mr. Irvin, the court learned that Mr. Irvin has waived his right to seek such advice by signing the following statement:

I HAVE BEEN ADVISED BY J.G. WENTWORTH ORIGINATIONS, LLC ("JGW") that I SHOULD OBTAIN INDEPENDENT PROFESSIONAL REPRESENTATION CONCERNING THE LEGAL, TAX AND/OR FINANCIAL IMPLICATIONS OF THIS TRANSACTION. I FULLY UNDERSTAND THE PURCHASE AGREEMENT AND THE EFFECTS OF THE TRANSACTION AND I DO NOT WISH TO SEEK OUT SUCH INDEPENDENT PROFESSIONAL REPRESENTATION.

This statement was signed by Mr. Irvin on August 11, 2012.

Petitioner and Mr. Irvin were provided a short form order from the Court requiring Mr. Irvin to seek such professional advice before his return to court on December 17, 2012. On this court date, Mr. Irvin presented a letter from Wayne C. Ewan, Financial Advisor, Edward Jones Investments, 1013 Fulton Street, Brooklyn, New York which is dated November 6, 2012, and states as follows:

Dear Mr. Irvin,

After reviewing your structured settlement with JG Wentworth, it was apparent to me that the settlement and the lump sum option that you were offered were not in your best interest. My initial advice was to not accept the settlement, however, as per our most recent conversation you made it clear that you are in an extreme financial situation and need the settlement for immediate concerns. Unfortunately it appears that you have no choice but to accept the terms offered to you although the terms are not favorable to you".

Once again "extreme financial situation" is stated as the reason for Mr. Irvin seeking $8,000.00 in return for future payments of $120,147.50, and no facts whatsoever are offered as to Mr. Irvin's extreme financial situation.

Accordingly, the court finds that petitioner has not satisfied the requirements of GOL§5-1706, and that transfer of structured settlement payment rights are not in the best interest of Mr. Irvin or his dependent daughter. Therefore, the court grants petitioner's request and amended the prior Order to correctly reflect the terms of the transfer as being $120,147.60 and not $340,240.00 as set forth in the December 17, 2012. Even so, the Court still finds this "transfer agreement" to be not in the best interest of the payee and his dependent and not in compliance with the requirements of GOL§5-1706. Petitioner's motion is hereby denied in its entirety. This constitutes the decision and order of the Court.

ENTER:

_______________________________

RICHARD VELASQUEZ, J.S.C. [*6]