Opinion
Index No. CV-25359-19
03-27-2023
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as Subrogee of Jose Urena Paredes, Plaintiff, v. Jahangir AHMAD, Defendant.
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, for plaintiff. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, for defendant.
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, for plaintiff.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, for defendant.
Claudia Lanzetta, J. Plaintiff's motion to reargue pursuant to CPLR 2221(d) is granted, as the Court finds there were matters of law misapprehended in the Decision dated December 7, 2021, (see Decision, Rivera, J.). To that effect, CPLR § 5003-a permits a stipulation of discontinuance to be relied on even if only executed "on behalf of the settling plaintiff" (id ). In other words, a defendant's signature is not required on a stipulation of discontinuance in making a motion under CPLR § 5003-a, (cf. Nationwide Affinity Ins. Co. of America v. Ramales , 68 Misc.3d 1214(A), 2020 WL 4993217 [Civ. Ct., Queens Co. 2020] ). Conceptually, if a plaintiff were to possess a stipulation of discontinuance signed by the defendant, it would follow that plaintiff was also paid, (see generally Hon. Mark C. Dillon, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C5003-a:1), and the necessity of a § 5003-a motion would be moot. This statute was meant to address the procedures and time limits for the payment of settlements, (id; see also Pitt v. New York City Hous. Auth. , 106 A.D.3d 797, 964 N.Y.S.2d 631 [2nd Dept. 2013] ), and not the substance of settlements.
It seems that stipulations of discontinuance and stipulations of settlement, despite their clear distinction, are being confused and conflated.
In that regard, CPLR 2104 requires a settlement agreement to be in writing and subscribed by the settling party or their attorney for it to be binding and enforceable. CPLR § 5003-a and 2104 are not mutually exclusive. For this reason, and because there is no sufficient evidence of settlement in this action, after reargument, the underlying motion to compel prompt payment must still be denied. The Court is aware that it has become custom and practice in these types of actions to rely on counsels' representations towards settlement. In other words, settlement agreements are not generally reduced to writing and following an oral agreement the parties will discuss exchanging "closing documents" (see generally CPLR § 5003-a ). Consequently, when there is an issue with payment, reliance can only be had on the prompt payment rule, as opposed to, for example, CPLR § 3215(i). Similarly, a motion made pursuant to CPLR § 5003-a, in practice, triggers payment, albeit late, and obviates the need for the motion. This often results in the withdrawal of these motions.
Interestingly, the stipulation of discontinuance here was signed by defendant's attorney, but it contains no material terms of settlement and therefore, cannot be relied on, (see generally Forcelli v. Gelco Corp. , 109 A.D.3d 244, 248, 972 N.Y.S.2d 570 [2nd Dept. 2013] ).
It is instances like the one underlying this and the prior motion, however, that present an issue. When, despite custom and practice, and the tendering of closing documents, one party questions the legitimacy of an alleged settlement. Unfortunately, and although doing so will impact the efficiency of settlements in these types of cases, some writing evidencing the terms of the settlement agreement and mutual assent thereto, should be available. This may include emails exchanged between the parties, (see e.g. Herz v. Transamerica Life Ins. Co. , 172 A.D.3d 1336, 99 N.Y.S.3d 664 [2d Dept. 2019] ), or notes made by the Court in connection with a conference, (see e.g. Rivers v. Genesis Holding, LLC , 11 Misc.3d 647, 649, 812 N.Y.S.2d 301 [Sup. Ct., New York Co. 2006] ; cf. Kleiner v. Thyssen Elevator Co. , 12 Misc.3d 136(A), 2006 WL 1861866 [App. Term, 2nd and 11th Jud Dists 2006] ).
In summary, plaintiff's motion to reargue is granted and, upon reargument, the request to compel prompt payment is denied.
The foregoing constitutes the Decision and Order of this court.