Opinion
CV-026902-17/QU
08-24-2020
NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA As Subrogee of Yuras, As Subrogee of Jaber, Plaintiff(s), v. RAMALES, Defendant(s).
Plaintiff Counsel: Law Office of Charles F. Harms, Jr., 990 Stewart Ave, Suite 400, Garden City, NY 11530 Defendant Counsel: Baker McEvoy Morrissey & Moskovits, P.C.1 Metrotech Center, 8th Floor Brooklyn, New York 11201
Plaintiff Counsel: Law Office of Charles F. Harms, Jr., 990 Stewart Ave, Suite 400, Garden City, NY 11530
Defendant Counsel: Baker McEvoy Morrissey & Moskovits, P.C.1 Metrotech Center, 8th Floor Brooklyn, New York 11201
Wendy Changyong Li, J.
I. Papers
The following papers (Papers 1–8 were filed with the court on November 25, 2019) were read on this motion ("Motion ") by Plaintiff for judgement for prompt payment from Defendant pursuant to CPLR 5003-a :
Papers Numbered
Plaintiff's Notice of Motion of Judgement for Prompt Payment dated November 15, 2019 1
Plaintiff's Affirmation in Support ("Affirmation in Support ") dated November 15, 2019 2
Plaintiff's Exhibit A — Summons and Verified Complaint dated October 27, 2017, as well as supporting documents 3
Verified Answer, Demand for Bill of Particulars, Notice for Discovery and Inspection, and Combined Demands dated March 14, 2018 4
Plaintiff's Exhibit B — Notice of mailing of Release and Stipulation of Discontinuance ("Notice of Mailing of Stipulation ") to Bailyen, representative Of American Transit Insurance dated August 20, 2019 5
Release for Property Damage to Ramales dated August 9, 2019 6
Stipulation of Discontinuance dated August 20, 2019 7
Plaintiff's Affidavit of Mailing of Notice of Motion of Judgement for Prompt Payment upon Baker, McEvoy, Morrissey & Moskovits, P.C., Attorneys for Defendant dated November 15, 2019 8
Defendant's Affirmation in Opposition ("Affirmation in Opposition ") dated December 12, 2019 9
Defendant's Affirmation of Service by Mail of Affirmation in Opposition (undated) 10
II. Procedural History
Pursuant to court's case summary, a notice of trial was filed on July 27, 2018 and this case was scheduled for March 6, 2019 in non-jury trial Part 15. On March 6, 2019, this case was adjourned to August 7, 2019. On August 7, 2019 in Part 15, this case was dismissed due to non-appearance by Plaintiff. On December 11, 2019, this Motion was filed with the court and this matter was scheduled for Part 30 on December 17, 2019. This matter was subsequently adjourned to February 14, 2020, and further adjourned to March 31, 2020 and May 20, 2020. The next calendar day for this case is September 2, 2020. This Motion is now assigned to this Court during the coronavirus pandemic. It is noted that Plaintiff stated that parties "reached a settlement, whereby Defendant agreed to pay Plaintiff the sum of $1,790.81 as full and final settlement of this action" on August 5, 2019 (Affirmation in Support at 1) and this action was dismissed on August 7, 2019 due to non-appearance by Plaintiff according to court's case summary.
III. Discussion
Upon the foregoing papers, it is ordered that this Motion is determined as follows:
Plaintiff's Motion for prompt payment pursuant to CPLR 5003-a is denied without prejudice.
1. Procedural Defect
As indicated above, this matter appears to have been dismissed on August 7, 2019 in Part 15 due to non-appearance by Plaintiff according to court's case summary. Procedurally, this Court cannot consider this Motion. Nevertheless, this Court will address this Motion on its merits.
2. Discussion on the Merits
Plaintiff alleged that it "brought this action to recover property damages to an automobile as a result of an automobile accident on June 1, 2017. The action was commenced by filing of a summons and complaint on November 9, 2017. Defendant duly appeared by serving an answer on or about June 4, 2018 On August 5, 2019 all parties reached a settlement, whereby Defendant agreed to pay Plaintiff the sum of $1,790.81 as full and final settlement of this action. Thereafter, on or about August 20, 2019, Plaintiff mailed Defendant's attorney a duly executed release and a duly executed stipulation discontinuing the action in compliance with CPLR 5003-a(a). More than twenty-one days [had] elapsed since the release and stipulation of discontinuance were tendered and Defendant [had] failed to pay the sums due to Plaintiff pursuant to the settlement." As a result, Plaintiff prayed for a judgement in the amount of $1,790.81, the proposed settlement amount, "with interest together with costs and disbursements." (Affirmation in Support at 1–2.) In response, Defendant argued that it had no knowledge of the settlement, stating that "if there was an agreement to settle, it was reached not with [Defendant's attorney's office] nor with defendants personally but rather was an agreement reached with a representative of the defendant's insurance carrier", therefore, it "[was] not binding on the defendants" (Affirmation in Opp at 1–2). In addition, Defendant argued that Plaintiff failed to provide proof of "tender" pursuant to CPLR 5003-a(g).
CPLR 5003-a, Prompt Payment Following Settlement, states that "(a) [w]hen an action to recover damages has been settled, any settling defendant shall pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff[;] [that] (e) i]n the event that a settling defendant fails to promptly pay all sums as required by subdivisions (a) of this section, any unpaid plaintiff may enter judgment, without further notice, against such settling defendant who has not paid[;] [that] [t]he judgment shall be for the amount set forth in the release, together with costs and lawful disbursements, and interest on the amount set forth in the release from the date that the release and stipulation discontinuing action were tendered[;] [and that] (g) [t]he term "tender", as used herein, shall mean either to personally deliver or to mail, by registered or certified mail, return receipt requested" ( CPLR 5003-a ).
In our instant case, Plaintiff alleged that Defendant failed to make the settlement payment in the amount of $1,790.81 within twenty-one (21) day of its "tender" of the "duly executed" stipulation of discontinuance (Affirmation in Support at 1–2) and had prayed for a judgement in the amount of $1,790.81 plus interest, cost and disbursement pursuant to CPLR 5003-a. It is noted, however, that the stipulation of discontinuance presented by Plaintiff to this Court only bears signature of Plaintiff or its attorney.
CPLR 5003-a(g) requires "tender" to be in the form of personal delivery or "registered or certified mail" with "return receipt requested" ( CPLR 5003-a[g] ). Here, Plaintiff presented this Court with a copy of its letter dated August 20, 2019 to American Transit Insurance (see court Paper 5) indicating its mailing of the stipulation and release, however, it has failed to provide evidence of mailing by "registered or certified mail, return receipt requested" (id. ). It also noted that Plaintiff's alleged "tender" was made to an insurance company, according to the Notice of Mailing of Stipulation, rather than to Defendant himself or his attorney. Plaintiff has filed to prove "tender" as required by CPLR 5003-a.
Pursuant to CPLR 2104, "[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered..." Here, Plaintiff's stipulation of discontinuance dated as of August 20, 2019 (see court Paper 7) is not "effective" because it does not contain signature from Defendant or his attorney ( Tortorello v. Carlin , 162 AD2d 291, 556 NYS2d 879 [NY App Div 1st Dept 1990] ), nor has Plaintiff provided any fact that such settlement was made in open court by counsels ( CPLR 2104 ). Plaintiff has failed to prove duly execution of the stipulation pursuant to CPLR 2104 and as required by CPLR 5003-a.
IV. Decision and Order
Accordingly, Plaintiff's Motion for prompt payment pursuant to CPLR 5003-a is denied without prejudice.
This constitutes the DECISION and ORDER of the Court.