Opinion
1563/2018
10-31-2018
In the Matter of the Petition of J.G. WENTWORTH ORIGINATIONS, LLC, Plaintiff, v. ALLSTATE LIFE INSURANCE COMPANY, Allstate Assignment Company and Dante Scicere, Defendants.
Law Office of Michael F. Nestor, LLC, 11 Broadway, Suite 831, New York, New York 10004, (917) 239-1708, Attorney for Petitioner
Law Office of Michael F. Nestor, LLC, 11 Broadway, Suite 831, New York, New York 10004, (917) 239-1708, Attorney for Petitioner
By order to show cause and petition filed on July 2, 2018, petitioner J.G. Wentworth Originations, LLC. (hereinafter petitioner or Wentworth), seeks an order granting permission to the Circuit Court of Lake County, Florida to determine the requested transfer of future structured settlement payments from respondent Dante Scicere to Wentworth under Florida's Structured Settlement Protection Act, Fla Stat § 626.99296, et seq.
Order to Show Cause
Petition
Affirmation
Exhibits A-D
MOTION PAPERS
Wentworth's motion papers consists of an order to show cause, petition, an affirmation of its counsel, and four annexed exhibits labeled A through D. Exhibit A is a copy of the Infant Compromise Order dated October 12, 2000 which approved the settlement of personal injury action brought by Kelly Sydnor, the mother and natural guardian of Dante Scicere, on his behalf in an action bearing Index number 32317/95. Exhibit B is the affidavit of Dante Scicere dated June 8, 2018. Exhibit C is described as a copy of the pertinent part of Florida Statute 626.99296 governing transfers of structured settlement payment rights. Exhibit D is a proposed order.
BACKGROUND
On July 2, 2018, Wentworth commenced the instant proceeding by filing an order to show cause and petition with annexed exhibits with the Kings County Clerk's office. No respondent has appeared or submitted a response or written opposition to the petition.
LAW AND APPLICATION
CPLR 2214 (a) provides that a notice of motion shall specify the relief demanded and the grounds therefore. In the instant proceeding, Wentworth seeks judicial permission from the New York State Supreme Court to make an application for judicial approval by the Circuit Court of Lake County, Florida for a transfer of certain structured settlement payments due to Dante Scicere under an Infant Compromise Order.
Wentworth is not seeking that this Court approve any particular proposed transfer, rather it solely seeks that this Court give permission to the Florida Court to determine whether the transfer application is in the best interests of the payee despite the Infant Comprise Order's language against transfers. In fact, Wentworth does not annex a copy of the proposed transfer application. Wentworth does not cite any law from either New York or Florida which requires the permission of a New York State Court to commence a proceeding in Florida.
General Obligations Law Title 17, § 5-1701 et seq. , known as the Structured Settlement Protection Act (SSPA) sets for the procedure for seeking and obtaining judicial approval of the appropriate Court of the State of New York for the transfer of certain structured settlement payment. SSPA was adopted by the State Legislature to give greater protection to individuals either entering into a structured settlement agreement or negotiating to sell or transfer a periodic payment thereunder to a third party.
The issue before the court on such a petition is whether approval of the proposed transfer would be consistent with the letter and spirit of SSPA ( Matter of Settlement Capital Corp. (Ballos) , 1 Misc 3d 446 [Sup Ct Queens Co. 2003] ). The plain language of General Obligations Law § 5-1706 sets forth several procedural mandates that must be adhered to for judicial approval of an application for transfer of a structured settlement to a third party (Id. ). Equally significant, the statute mandates that the court, in determining such an application, make a two-prong inquiry based upon considerations of prudence, equity and reason, and vests in the court the authority to make an independent discretionary determination as to whether "the transfer is in the best interest of the payee, taking into account the welfare and support of the payee's dependants; 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" (Id. ). The primary purpose of the SSPA is to protect the recipients of long-term structured settlements from being victimized by companies aggressively seeking the acquisition of their rights to guaranteed structured settlement payments (see 321 Henderson v Martinez , 11 Misc 3d 892 [Sup Ct NY Cty 2006] ).
The Florida Structured Settlement Protection Act § 626.99296 et seq. , is Florida's statute pertaining to petitions to purchase structured settlement payments. It is similar to SSPA in that is designed to protect recipients of structured settlements who are involved in the process of transferring structured settlement payment rights. Wentworth contends that the Florida SSPA contains a procedural requirement that provides authority for the instant petition, but it does not cite any provision of the Florida SSPA. Rather, Wenworth's petition cites Fla Stat § 626.99296 (3) (a) (3), which provides conditions and disclosure that must be found by the Court upon review of the transfer application including the best interest of the payee.
Wentworth has not claimed or shown that the Florida courts have ordered it to obtain this court's approval pursuant to the Florida SSPA. Assuming, for the sake of argument, that it made such a showing, Wentworth's application has expressly stated that it does not seek this Court's approval of the proposed transfer but solely permission to have the Florida court decide the application. Therefore, the only law Wentworth has cited is not applicable to the relief it seeks. Consequently, Wentworth has not complied with the requirements of CPLR 2214 (a) because it has not set forth and established the facts or law which support the relief requested. Accordingly, the application is denied and the petition is dismissed without prejudice (see J.G. Wentworth Originations, LLC v. Ruiz , 44 Misc 3d 1211(A)[Sup. Court Kings County 2014] ). Should Wentworth file another petition seeking the same relief, it is directed to attach the instant decision and order to its commencement papers, include the law and facts that it relies upon to support the petition, and advise the court by affirmation or affidavit of a person with personal knowledge of the outcome of any prior petition for the same or similar relief.
CONCLUSION
J.G. Wentworth Originations, LLC.'s motion for an order granting permission to the Circuit Court of Lake County, Florida to determine the requested transfer of future structured settlement payments from respondent Dante Scicere to Wentworth is denied without prejudice.
The foregoing constitutes the decision and order of this Court.