This petition seeks judicial approval of the proposed transfer of a portion of future [*2]payments due Steven Mower under a structured settlement agreement in exchange for the present payment of a discounted lump sum (General Obligations Law § 5-1701 et seq.).

This court's judicial function under the SSPA requires an evaluation of a variety

of factors, but particularly: (1) whether the transaction is fair and reasonable; and (2) whether the

transfer is in the best interest of the payee, taking into account the welfare and support of the

payee's dependents, if any.

Here, the transfer amount was calculated by applying an annual discount rate of 15.03%. The court notes that similar rates have been deemed unreasonable (Matter of Settlement Funding of NY, 195 Misc 2d 721 [Sup Ct, Rensselaer County 2003] [15.46% discount rate not accepted as fair and reasonable]; Settlement Funding of NY, LLC v Hartford—Comprehensive Empl. Ben. Svc. [*3]Co., 25 Misc 3d 1220 [A][Sup Ct, Queens County 2009] [14.99% discount rate not accepted as fair and reasonable]; Matter of Settlement Capital Corp. [Ballos], 1 Misc 3d 446 [Sup Ct, Queens County 2003] [15.591% discount rate not accepted as fair and reasonable]). The court finds the discount rate here of 15.03% is not fair and reasonable.

Next, the court must also consider whether the proposed transfer is in Mr. Mower's best interest.

Mr. Mower avers he is 28 years old, single, self-employed as an "owner-operator" and earns approximately $20,000 per year (Mower Affidavit, ¶ 10). Mr. Mower's initial affidavit lists three uses for which he seeks approval of this transfer, namely payment of overdue bills, purchase of a used car, and savings to pay his payroll for his business. By way of a supplemental letter, Mr. Mower attempts to provide clarification of how he intends to use the $25,500 cash he would receive from this application.^[FN1]

The first category relates to unpaid bills and credit card debt. Mr. Mowers states "I intend on paying $6,200.00 from the proceeds to pay off past due and overdue credit cards and other bills. I owe $3,000.00 on a Citibank card, over $800.00 on past due Verizon Wireless bill, and smaller amounts on other various credit cards that all total up to $6,200.00" (Mower Affidavit, ¶ 11). In his supplemental submission, Mr. Mower itemizes $5,824 in debts ranging from $3,160 owed to Citibank to $122 owed to "NY Taxation" (Supplemental Affidavit, Ex A). However, Mr. Mower does not submit any proof of these debts.

The second category of uses that Mr. Mower intends to apply his cash relates to supplies/vehicles for his business. In his affidavit, Mr. Mower states that "I also run my own business. I am the owner/operator and I have been expanding quite a bit over the past few years, but am running out of finances to put back into my business. I have heavily considered this option and have decided that it is in my best interest to put $10,000.00 into a reliable, pre-owned truck, which is very important in my line of work" (Mower Affidavit, ¶ 11). In his supplemental letter, Mr. Mower adds three tools with prices (drywall panel lift $200; scaffolding $450; and 32' ladder $350), as well as printouts from craigslist.com of three used trucks costing approximately each $10,000 (Exhibit A to Supplemental Affidavit).

With respect to these business expenses, Mr. Mower has not provided any information regarding his business including its name, nature, and/or financial status including income and expenses. The court's own research did uncover a doing business certificate for "Master Maintenance" under Mr. Mower's name located in the Broome County Clerk's Office but that does not provide any financial information about the business.

The third and final category to which Mr. Mower indicates he will use the cash relates [*4]generally to his business. Originally, Mr. Mower stated that "[t]he remaining balance of $9,300.00 will be put into a high yield savings account which will be used as savings as well as used to help me pay payroll for multiple employees, so that they can be paid every 2 weeks until the job is completed and I get paid myself. This runs me between $1,500.00 and $2,250.00 every 2 weeks. I do not have any other assets or credit resources to finance these needs" (Mower Affidavit, ¶ 11). Then, in his supplemental letter, Mr. Mower lists $1,500 for advertising (direct mailers, radio advertising, lettering on truck), "$2,746 toward fronting materials & payroll until reimburse from customers" and "remaining $4,000 not to be used" (Exhibit A to Supplemental Affidavit).

Obviously in today's financial market there are no such things as high yield savings accounts but even assuming such an investment, again the court has not been provided with any details regarding his business income and expenses. Additionally, Mr. Mower has not provided any information regarding his current expenses, living arrangements, or the vehicle he is driving now.

In view of the foregoing and the lack of information, the court finds that the proposed transfer is not in Mr. Mower's best interest (Whitney v LM Prop. & Cas. Ins. Co., 32 Misc 3d 1212 [A] [Sup Ct, Westchester County 2011]).

Based on the foregoing, the Petition is denied.

Dated:May 21, 2013

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court