Son of Sam 10% Exemption Applies to Inmate’s Medical Malpractice Settlement

Under New Yorks Son of Sam law, a crime victim has the right to bring a civil action to recover money damages from a person convicted of perpetrating that crime within 3 years of the discovery of any profits from the crime or funds of the convicted person. The law states that the first 10% of compensatory damages awarded by judgment to the convicted person is exempted from execution or enforcement.

In New York State Crime Victims Bd. ex rel. Thompson v. Gordon, — N.Y.S.2d —, 2009 WL 3380603 (3 Dept., 2009), an convict serving a lengthy prison sentence reached a $150,000.00 settlement of his medical malpractice case. Three of the convicts victims successfully sought to prevent the State from disbursing the net settlement funds (which totaled $101,188.96, after deduction of disbursements and counsel fees) to the convict. The convict, however, moved to compel payment to him of 10% of the net settlement under CPLR 5205(k).The issue was whether the stipulation of settlement so-ordered (approved) by the Court of Claims was the equivalent of a judgment as that word is used in the statute.

The Supreme Court denied the convicts motion, holding that because the funds were received as a result of a settlement rather than a judgment, he could not collect the first 10% of the net settlement. The Appellate Division, Third Department reversed. The Appellate Division based its decision on a few factors, including that inmates would not settle their personal injury cases and would have to force a trial, at cost to the system and the State, in order to at least try to collect 10%. Another factor is that forcing matters to verdict produces a result directly contrary to New Yorks public policy of encouraging the expeditious settlement of claims. In addition, if inmates could not keep any of their recovery, inmates who are the victims of tortious acts would have no incentive to try to right the wrong, and there would be no accountability on the part of the wrongdoer.

The court held that inasmuch as the medical malpracticesettlement was so-ordered by the Court of Claims and thus formally approved by the court, that was the equivalent of a judgment. “Son of Sam” laws are named after David Berkowitz, a New York serial killer who left a note signed “Son of Sam” at the scene of one of his crimes. The law was initially passed when it was learned that Mr. Berkowitz was being paid to publish a book about his crimes. The public was outraged that anyone could financially profit from their own criminal activity. Thus the convict’s victims were given the right to recover the criminal’s profit.

The U.S. Supreme Court foundNew York’s initial “Son of Sam” law to be unconstitutional because it was limited to the financial profit gained from publishing about the crimes. This was found to improperly limit a constitutional right to freedom of expression. In response, the legislature expanded the right of recovery beyond publishing so as to make it clear that the objective was to allow crime victims to recover profitsa convict seeks to gain from from having committed the crime.

The lawyers at Levine & Slavit have decades of experience handling personal injury claims including those involving medical malpractice. For 50 years spanning 3 generations, we have obtained results for satisfied clients. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens and surrounding areas. To learn more, watch our videos.

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