February 24, 2023

Clove Med. Supply, Inc. v Country-Wide Ins. Co. (2023 NY Slip Op 50280(U))

Headnote

The main issue in the case was whether the defendant's payment to the plaintiff was timely according to the terms of a stipulation of settlement. The court considered conflicting evidence regarding the terms of the stipulation of settlement, with the plaintiff providing a signed copy stating that the payment was due within 21 days, and the defendant providing a signed copy with a handwritten notation stating that the payment was due within 45 days. The court held that there was an apparent factual dispute regarding the terms of the settlement and the defendant's compliance, and therefore it was an error for the Civil Court to grant the defendant's motion without holding a hearing to determine the disputed issues of fact. As a result, the order was reversed, the default judgment was reinstated, and the matter was remitted to the Civil Court for a new determination, following a hearing, of defendant's motion to vacate the default judgment.

Reported in New York Official Reports at Clove Med. Supply, Inc. v Country-Wide Ins. Co. (2023 NY Slip Op 50280(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Clove Medical Supply, Inc., as Assignee of Tejeda Victor, Appellant,
against
Country-Wide Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant.

Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered January 15, 2019. The order granted defendant’s motion to vacate a judgment entered January 26, 2019 pursuant to a default under a stipulation of settlement.

ORDERED that the order is reversed, with $30 costs, the default judgment is reinstated and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant’s motion to vacate the default judgment.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation of settlement which provided that defendant would pay plaintiff the total sum of $2,523.02. Plaintiff accepted from defendant three checks dated 45 days after the stipulation of settlement. Thereafter, plaintiff applied for a default judgment, alleging that defendant had failed to timely make the payment. Plaintiff provided a signed copy of the purported stipulation of settlement which set forth that defendant was to make the payment within 21 days. A judgment was entered against defendant. Defendant moved to vacate the judgment, asserting that its payment was timely. Defendant provided a signed copy of the purported stipulation of settlement which contained a handwritten notation setting forth that [*2]defendant was to make the payment within 45 days. After oral argument, but without holding a hearing, the Civil Court granted defendant’s motion.

In light of the apparent factual dispute regarding the terms of the stipulation of settlement and defendant’s compliance with them, it was error for the Civil Court to grant defendant’s motion without holding a hearing to determine the disputed issues of fact (see Midland Funding, LLC v Dort, 39 Misc 3d 151[A], 2013 NY Slip Op 50975[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also U.S. Equities Corp. v Ridwan, 71 Misc 3d 138[A], 2021 NY Slip Op 50449[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the order is reversed, the default judgment is reinstated and the matter is remitted to the Civil Court for a new determination, following a hearing, of defendant’s motion to vacate the default judgment.

TOUSSAINT, P.J., BUGGS and MUNDY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 24, 2023