Settlement Demand Letter (New York)

CONFIDENTIAL SETTLEMENT DEMAND — STATE OF NEW YORK

PRIVILEGED SETTLEMENT COMMUNICATION — INADMISSIBLE UNDER CPLR § 4547

New York-specific settlement demand letter. Incorporates CPLR settlement privilege, Gen. Oblig. Law § 5-336 restrictions on NDAs in harassment/discrimination settlements, and New York-specific damages computations.

CRITICAL NEW YORK DRAFTING NOTES

☐ CPLR § 4547 Privilege. New York's settlement privilege precludes admission of "evidence of (a) furnishing, or offering or promising to furnish, or (b) accepting, or offering or promising to accept, any valuable consideration in compromising or attempting to compromise a claim." Mark all pages accordingly.

☐ GOL § 5-336 NDA Limits. For claims involving unlawful discrimination, harassment, or retaliation, any non-disclosure provision requires: (i) the complainant's preference memorialized in writing, (ii) a 21-day consideration period, (iii) a 7-day revocation period, and (iv) the complainant cannot be required to pay liquidated damages or forfeit consideration for breach (per November 17, 2023 amendments). NDAs cannot include any affirmative statement that the complainant was not subjected to unlawful conduct.

☐ Independent Contractors Covered. Since the November 17, 2023 amendments, GOL § 5-336 applies to independent contractors as well as employees.

☐ Adult Survivors Act / Child Victims Act. Be aware of the now-closed ASA lookback window (CPLR § 214-j) and the revived claims it enabled; and CPLR § 214-g (Child Victims Act) deadlines.

☐ CPLR 3217(b) Discontinuance. A stipulation of discontinuance signed by the parties operates as a dismissal with prejudice unless specified otherwise.

☐ Structured Judgments. In personal injury, medical malpractice, and wrongful death cases above $250,000 in future damages, CPLR Art. 50-A and 50-B mandate structured judgments; consider this in settlement structure.

☐ GOL § 15-108. General release of one tortfeasor reduces claim against remaining tortfeasors by the greater of the consideration paid, the released party's equitable share, or the amount stipulated in the release.

1. HEADER

[LAW FIRM LETTERHEAD]
[________________________________] (NY Street Address)
[________________________________] (City, NY ZIP)
Tel: [________________________________]
E-mail: [________________________________]

FOR SETTLEMENT PURPOSES ONLY — CONFIDENTIAL COMMUNICATION
INADMISSIBLE UNDER N.Y. CPLR § 4547 AND FED. R. EVID. 408

Date: [__/__/____]

VIA E-MAIL AND CERTIFIED MAIL

To:
[________________________________], Esq. (Defense Counsel, if represented)
[________________________________] (Firm)
[________________________________] (Address)
-or-
[________________________________] (Opposing Party, if unrepresented)
[________________________________] (Address)

Re: [________________________________] v. [________________________________]
Index No.: [________________________________] (if filed)
Incident Date: [__/__/____]
Our File No.: [________________________________]

2. NATURE OF THE CLAIM

2.1 Parties. Our firm represents [________________________________] ("Claimant") in connection with injuries and damages arising from an incident that occurred on [__/__/____] at [________________________________], in [________________________________] County, New York.

2.2 Claim Type: ☐ Personal Injury ☐ Construction Labor Law §§ 200/240/241 ☐ Employment (Exec. Law § 296) ☐ Breach of Contract ☐ Commercial Tort ☐ Other: [________________________________]

2.3 Brief Factual Summary:
[________________________________]
[________________________________]
[________________________________]

2.4 Legal Theories Under New York Law (asserted in good faith):

• ☐ Negligence (common law)
• ☐ N.Y. Labor Law § 240(1) (absolute liability for gravity-related injuries)
• ☐ N.Y. Labor Law § 241(6) (Industrial Code violations)
• ☐ N.Y. Labor Law § 200 (general workplace safety)
• ☐ Breach of contract (CPLR § 213(2))
• ☐ NYSHRL violation (Exec. Law § 296) — intentional discrimination/harassment/retaliation
• ☐ NYCHRL (Admin. Code § 8-107) if NYC-based
• ☐ Wage and Hour (NYLL §§ 191, 195, 198 liquidated damages)
• ☐ Deceptive Acts under GBL § 349 (treble damages capped at $1,000)
• ☐ False Advertising under GBL § 350 (treble damages capped at $10,000)
• ☐ Other: [________________________________]

3. LIABILITY ANALYSIS

3.1 Liability Is Clear. The facts establish Defendant's liability as follows:

[Detailed factual and legal analysis, including expert findings, witness statements, surveillance, photographs, and applicable New York case law]

3.2 Applicable Statutes and Decisions:

• [Cite relevant NY Court of Appeals, Appellate Division, and trial court decisions]
• [Cite applicable regulatory or statutory authority]

3.3 Defenses Considered and Rejected. Claimant has considered the following defenses and concludes they have no merit:

• Comparative negligence under CPLR § 1411: Claimant bears no fault.
• Assumption of risk: Not applicable; Claimant did not "engage in activity involving open and obvious risk."
• Statute of limitations: The claim is timely under CPLR §§ [213 / 214 / 214-a / 214-g / 214-j].

4. DAMAGES

4.1 Special (Economic) Damages:

4.2 General (Non-Economic) Damages. New York does not cap non-economic damages in most cases. Comparable verdict analysis (see Jury Verdict Reporter for [County] County) supports the following:

4.3 Statutory / Enhanced Damages (as applicable):

• NYLL § 198 liquidated damages (100% of wages owed): $[________]
• NYLL § 740 whistleblower damages, civil penalties up to $10,000, punitive damages: $[________]
• GBL § 349(h) actual + treble damages (capped at $1,000) + attorneys' fees: $[________]
• Punitive damages under Home Ins. Co. v. Am. Home Prods. Corp., 75 N.Y.2d 196 (1990), "gross, wanton, or willful" standard: $[________]

4.4 Prejudgment Interest. Claimant will seek prejudgment interest at nine percent (9%) per annum under CPLR §§ 5001, 5004 from the earliest ascertainable date the cause of action existed. For personal injury claims, prejudgment interest generally runs only on economic damages from date of verdict/decision; see CPLR § 5002.

4.5 Costs, Disbursements, and Fees. Recoverable under CPLR Art. 82 and specific fee-shifting statutes (NYSHRL, NYLL, NYCHRL).

4.6 TOTAL SETTLEMENT DEMAND: $[________________________________]

5. SETTLEMENT OFFER

5.1 Demand. Claimant offers to compromise and fully resolve all claims against Defendant for the total sum of $[________], payable within thirty (30) days of execution of a mutually acceptable release.

5.2 CPLR § 3217 Stipulation. Upon payment, Claimant will execute a stipulation of discontinuance with prejudice under CPLR § 3217(a)(2).

5.3 Form of Release. A general release in the form customarily used in New York, compliant with Gen. Oblig. Law § 15-108 where joint tortfeasors are involved, and drafted to preserve rights against non-settling parties if applicable.

5.4 Allocation. The parties will allocate the settlement payment between compensatory damages (physical injury — excludable under I.R.C. § 104(a)(2)) and other components consistent with the facts and tax law. Each party will obtain independent tax advice.

5.5 Medicare/Medicaid. Claimant acknowledges Medicare Secondary Payer Act obligations (42 U.S.C. § 1395y(b)(2)) and will cooperate in obtaining a conditional payment letter. Any lien resolution obligations will be addressed pre-disbursement.

5.6 Attorney's Lien. Counsel asserts a charging lien under N.Y. Jud. Law § 475.

6. CONFIDENTIALITY AND GOL § 5-336 COMPLIANCE

6.1 Discrimination/Harassment/Retaliation Claims. If this matter involves claims of unlawful discrimination, harassment, or retaliation:

a. Any non-disclosure provision will be included ONLY upon Claimant's written preference as required by N.Y. Gen. Oblig. Law § 5-336(1);
b. Claimant will be afforded a 21-day period to consider the NDA provision and a 7-day revocation period;
c. NO LIQUIDATED DAMAGES OR FORFEITURE PROVISIONS are permissible for breach of any NDA, per the November 17, 2023 amendments;
d. NO AFFIRMATIVE STATEMENT that Claimant was not subject to unlawful conduct is permitted; and
e. Claimant retains the right to file or participate in governmental agency proceedings (EEOC, NYSDHR, NYCCHR).

6.2 Non-Harassment Claims. For claims not covered by § 5-336, the parties may negotiate reasonable mutual confidentiality and non-disparagement provisions consistent with New York public policy.

7. DEADLINE AND CONSEQUENCES

7.1 Response Deadline. Please respond in writing by 5:00 p.m. ET on [__/__/____] (the "Response Deadline"), which is [____] days from the date of this letter.

7.2 If No Settlement. If this demand is not accepted by the Response Deadline, Claimant will:
a. Commence/prosecute litigation in the Supreme Court of the State of New York, County of [________________________________], or where filed, continue prosecution;
b. Seek full compensatory, statutory, and (where applicable) punitive damages, plus prejudgment interest, costs, and attorneys' fees;
c. Pursue all ancillary relief, including pre-action disclosure under CPLR § 3102(c) where appropriate; and
d. Proceed to trial under CPLR § 4101 with full jury demand.

7.3 Insurance Disclosure Demand. Pursuant to CPLR § 3101(f), Claimant demands disclosure of all applicable liability insurance policies, including primary, excess, and umbrella coverage, and any reservation of rights or coverage denial.

8. LITIGATION HOLD

Defendant is hereby directed to preserve all documents, ESI, video surveillance, body camera footage, maintenance logs, OSHA/PESH reports, personnel files, communications, incident reports, and any other materials relating to the claim, consistent with VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33 (1st Dep't 2012); Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543 (2015). Spoliation sanctions under CPLR § 3126 will be sought.

9. PRESERVATION OF RIGHTS

9.1 This demand is made without prejudice, in accordance with CPLR § 4547, and is not admissible to prove liability or damages.

9.2 All rights, claims, defenses, and remedies are expressly reserved.

9.3 This demand does not constitute acceptance of any factual or legal position, and any negotiation is without waiver of the attorney-client or work-product privileges.

10. SIGNATURE

Respectfully submitted,

___________________________________
[________________________________], Esq.
[________________________________] (Firm)
[________________________________] (NY Address)
NY Attorney Reg. No.: [________________________________]
Tel: [________________________________]
E-mail: [________________________________]

Counsel for Claimant [________________________________]

Date: [__/__/____]

Enclosures:

• Exhibit A: Medical Records and Bills
• Exhibit B: Wage Documentation (W-2, 1099, tax returns)
• Exhibit C: Expert Reports (economist, life care planner, vocational)
• Exhibit D: Photographs / Surveillance Video
• Exhibit E: Witness Statements / Affidavits
• Exhibit F: Applicable Contract / Policy (if breach)

Sources and References

• N.Y. CPLR § 4547 — Settlement Communications
• N.Y. Gen. Oblig. Law § 5-336 — https://www.nysenate.gov/legislation/laws/GOB/5-336
• N.Y. Gen. Oblig. Law § 15-108 — Releases
• N.Y. CPLR §§ 5001, 5002, 5004 — Interest
• N.Y. CPLR Art. 50-A, 50-B — Structured Judgments
• N.Y. CPLR § 214-g (Child Victims Act), § 214-j (Adult Survivors Act)
• Kavanagh v. Nussbaum, 71 N.Y.2d 535 (1988)
• Home Ins. Co. v. Am. Home Prods. Corp., 75 N.Y.2d 196 (1990)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. It must be reviewed and customized by a New York-licensed attorney before use.