December 3, 2008

DJS Med. Supplies, Inc. v American Tr. Ins. Co. (2008 NY Slip Op 52456(U))

https://www.beynensonlaw.com/case-law/djs-med-supplies-inc-v-american-tr-ins-co-2008-ny-slip-op52456u/

Court
Appellate Term, Second Department
Decided
December 3, 2008
Citation
2008 NY Slip Op 52456(U) · 21 Misc 3d 143(A)
Posture
Other motion
Outcome
Insurer prevailed
Issues
Other
Cite as
DJS Med. Supplies, Inc. v American Tr. Ins. Co., 21 Misc 3d 143(A), 2008 NY Slip Op 52456(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider failed to prove tender of a release and stipulation of discontinuance required to enforce its settlement under CPLR 5003-a. After settling its assigned no-fault action, the provider moved for leave to enter judgment and add interest, attorney fees and costs. CPLR 5003-a (a), (e) and (g) permit judgment upon nonpayment only after tender by personal delivery or registered or certified mail, return receipt requested, and expiration of 21 days. The provider's submissions did not establish that tender. The Appellate Term, Second Department, affirmed denial of the unopposed motion on different grounds, favoring the insurer, and passed on no other issue.

Reported in New York Official Reports at DJS Med. Supplies, Inc. v American Tr. Ins. Co. (2008 NY Slip Op 52456(U))

[*1]
DJS Med. Supplies, Inc. v American Tr. Ins. Co.
2008 NY Slip Op 52456(U) [21 Misc 3d 143(A)]
Decided on December 3, 2008
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on December 3, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2007-2016 Q C.
DJS Medical Supplies, Inc., a/a/o ANATOLIY DASHKEVICH, Appellant,

against

American Transit Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 25, 2007. The order denied plaintiff’s motion for leave to enter a judgment after settlement, pursuant to CPLR 5003-a, and for leave to include in the judgment a provision for additional interest, attorney’s fees and costs.

Order affirmed without costs.

In November of 2003, plaintiff provider commenced this action to recover assigned first-party no-fault benefits in the sum of $1,879, plus statutory interest and attorney’s fees. The parties entered into a stipulation of settlement in November of 2006. In August of 2007, plaintiff moved, pursuant to CPLR 5003-a, for an order granting it leave to enter a judgment after settlement, and providing that the judgment include provisions for additional interest and costs. The court denied the unopposed motion, and this appeal by plaintiff ensued.

CPLR 5003-a, enacted to encourage the prompt payment of damages in settled actions, authorizes a settling plaintiff to enter judgment against a settling defendant who fails to pay all sums as required by the statute (see Cunha v Shapiro, 42 AD3d 95 [2007]). Insofar as is relevant to the instant case, CPLR 5003-a (a) provides that the 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” (emphasis added). The term “tender,” as used in the statute, is defined as meaning “either to personally deliver or to mail, by registered or certified mail, return receipt requested” (CPLR 5003-a [g]). Should the settling defendant fail to make prompt payment of all sums due, the unpaid plaintiff “may enter judgment, without further notice, against such settling defendant who has not paid” (CPLR 5003-a [e]). [*2]

In order to avail itself of the enforcement mechanism of CPLR 5003-a, an unpaid settling plaintiff must adhere to the requirements of the statute by tendering a general release and a stipulation of discontinuance and by waiting 21 days following such tender (see Cunha v Shapiro, 42 AD3d 95 [2007]; see also Dobler Chevrolet v Board of Assessors, 2001 NY Slip Op 50013[U] [Sup Ct, Nassau County 2002]). In the instant case, plaintiff’s submissions in support of its motion were insufficient to prove its tender to defendant of the release and stipulation of discontinuance. Accordingly, the order denying plaintiff’s motion is affirmed, albeit on different grounds. We pass on no other issue.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: December 03, 2008

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