Opinion
042388/09.
Decided November 29, 2011.
Kopelevich Feldsherova, Brooklyn, NY, For plaintiff.
McCormack Mattei, Garden City, NY, For defendant.
In this action to recover assigned first-party no-fault benefits ( see Insurance Law § 5106[a]; 11 NYCRR 65-1.1), plaintiff health care provider moves for summary judgment in the amount of $3,295. Defendant insurer cross-moves for an order dismissing the complaint based upon the parties' stipulation of settlement.
On February 1, 2010, eight months after the defendant served its answer, the parties entered into a written stipulation of settlement, entitled "Agreement and Release", wherein plaintiff agreed to discontinue with prejudice all pending and future claims against the defendant. The global agreement is signed by counsel for both parties and provides, in part, that the plaintiff "hereby releases and discharges" the defendant "from any and all claims, demands, losses, liabilities, costs, actions, causes of action or suits of any kind whatsoever, whether in law or equity, known or unknown, foreseen or unforeseen." The particular claim upon which this action is based was specifically listed on the first page of Schedule "A" attached to the stipulation. In its summary judgment motion, filed March 15, 2011, the plaintiff makes no mention of the settlement agreement, nor does it oppose the defendants' cross-motion which seeks dismissal on grounds premised upon the settlement agreement.
The defendants' motion, mischaracterized as one to dismiss pursuant to CPLR 3126, in effect seeks dismissal pursuant to CPLR 3211(a)(5) on the grounds of release and res judicata. Both a defense of release ( see Campbell v Genesis Contractors, Inc. , 76 AD3d 1038 [2nd Dept. 2010]) and res judicata may be premised upon "a stipulation of settlement withdrawing a complaint of cause of action with prejudice." Farren v Lisogorsky , 87 AD3d 713 , 714 (2nd Dept. 2011); see Greenstone/Fontana Corp. v Feldstein , 72 AD3d 890 (2nd Dept. 2010); Lim v Choices, Inc. , 60 AD3d 739 [2nd Dept. 2009]). There can be no dispute that the parties' comprehensive and unambiguous settlement agreement effectively discontinued the instant action and relieved the defendant of any liability to the plaintiff in this action. Thus, the court, on its own motion, amends the defendants' answer to add the affirmative defenses of res judicata and release, and grants the motion to dismiss. See Campbell v Genesis Contractors, Inc., supra; Cave v Kollar , 2 AD3d 386 (2nd Dept. 2003); Ficorp, LTD. v Gourian, 263 AD2d 392 (1st Dept. 1999); Barrett v Kasco Constr. Co., 84 AD2d 555 (2nd Dept. 1981). In light of its own settlement agreement, the plaintiff can not reasonably claim prejudice or surprise by the amendment. See CPLR 3025(b); Tomasino v American Tobacco Company , 57 AD3d 652 (2nd Dept. 2008); Uptodate Medical Service, P.C. v State Farm Mutual Automobile Ins. Co., 22 Misc 3d 128(A) (App Term, 2nd, 11th 13th Jud Dists 2009). Indeed, having failed to oppose the defendant's motion, or even mention the settlement in its own moving papers, the plaintiff offers no argument to the contrary.
The court notes the rule that an affirmative defense is generally deemed waived where a party fails to raise it in either a pre-answer motion to dismiss or as an affirmative defense in the answer. See CPLR 3211(e). However, it is well settled that there is no waiver where the defense arises after joinder of issue. See Lance International, Inc. v First National City Bank , 86 AD3d 479 (1st Dept. 2011); George Strokes Elec. Plumbing v Dye, 240 AD2d 919 (3rd Dept. 1997). Here, the defenses arose upon the execution of the parties stipulation of settlement, several months after issue was joined. Further, that the defendants chose to move to dismiss rather than for leave to amend its answer should not preclude dismissal of the complaint since, given the circumstances of this case, "to hold otherwise would place from over substance." Ladson v Fessel , 85 AD3d 1128 (2nd Dept. 2011), quoting Bennett v First Natl. Bank of Glens Falls, 146 AD2d 882, 885 (3d Dept. 1989).
In light of the dismissal on the complaint, the plaintiff's motion for summary judgment is denied as moot.
Accordingly, it is hereby
ORDERED that the plaintiff's motion for summary judgment is denied; and it is further,
ORDERED that, on its own motion, the court amends the answer to add the affirmative defenses of res judicata and release and deems the cross-motion one to dismiss the complaint on those grounds; and it is further,
ORDERED that the cross-motion is granted and the complaint is dismissed.
This constitutes the Decision and Order of the court.