New York State Court of Claims

New York State Court of Claims

ALVAREZ v. THE STATE OF NEW YORK, #2001-028-800, Claim No. 92005, Motion No. M-62854


Motion made by claimant to enforce a settlement. Settlement was placed on the record as subject to agency approval.

Case Information

CARMEN ALVAREZ, as Administratrix of the Estate of MARVIN JURADO, deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Richard E. Sise
Claimant's attorney:
Kelner & Kelner Esqs. By: Emil L. Samuels, Esq.
Defendant's attorney:
Eliot Spitzer Attorney General of the State of New YorkBy: Hector LaSalle, Esq.
Third-party defendant's attorney:

Signature date:
April 4, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On March 27, 2001, the following papers, numbered 1 to 2, were read on motion by claimant for an order to enforce a stipulation of settlement:

Papers Numbered

Notice of Motion, Affirmation

and Exhibits Annexed 1

Affirmation in Opposition, and

Exhibit Annexed 2

This is a claim for the wrongful death of Marvin Jurado (hereinafter "decedent"). brought by Carmen Alvarez as Administratrix of his estate (hereinafter "claimant"). Claimant alleges that defendant failed to timely respond, transport and treat the decedent. Claimant's motion seeks an order enforcing a stipulation of settlement and entry of a judgment pursuant to CPLR 5003-a and Court of Claims Act §20-a.

This claim was filed on June 22, 1995. On March 29, 1999, both parties were present in Court before the Hon. Leonard Silverman for trial.[1] Claimant was present with expert and lay witnesses, who were prepared to testify.

Prior to the commencement of the trial, defendant offered to settle this matter in the sum of $350,000.00. Defendant stated that the settlement would be contingent upon the approval of the defendant's client agency (SUNY Stony Brook Hospital). To memorialize the proposed settlement, the parties appeared in open court and the proposed stipulation of settlement was placed on the record. Claimant, Carmen Alvarez, was called to the stand and sworn by the Court. Claimant was then questioned by her attorney as to her understanding of the proposed settlement. The first question asked of the claimant was as follows:
Q. Ms. Alvarez, have I discussed with you this morning - - actually, the end of last week and again this morning - - an offer, a tentative offer being made by the State of New York, by the Attorney General on behalf of Stony Brook Hospital, that the Attorney General's office will recommend to the committee of Stony Brook Hospital for settlement of the action presently pending here of the total and complete sum of $350,000.00? Now, should Stony Brook Hospital agree, then that will be the end of it. The case will be settled and that will be the end of it. Do you understand that?

A. Yes.

A few questions later, claimant was asked the following:
Q. Do you understand the matter is not actually settled today, it's still subject to approval by Stony Brook and then listening to the recommendation of their own attorney?

A. Yes.

In examining the transcript of the proposed settlement, the Court notes approximately eleven occasions when it was made clear that the settlement was contingent upon Stony Brook's approval.

Defendant does not dispute the facts and history of the proposed settlement matter as related by the claimant in her moving papers. Defendant argues that the settlement was pending the approval of the client agency and said approval was not given. In opposition, to claimant's motion, defendant states that it presented this case to the client agency for approval of the proposed sum and that on March 2, 2000, the client agency advised the Attorney General's Office that it was rejecting the proposed settlement. This rejection was communicated to the claimant's attorney, who requested permission from the defendant to submit a statement to Stony Brook in an effort to change the agency's decision. Claimant's attorney, according to the defendant, submitted a statement to Stony Brook in May 2000 alleging that the defendant failed to follow through on a negotiated settlement. Claimant then filed the instant motion in December 2000. Claimant in seeking an order from this Court relies on Court of Claims Act §20-a and CPLR 5003-a. Court of Claims Act §20-a, in pertinent part, states "[n]o such stipulation [of settlement] shall be executed on behalf of the state without, after consultation with the director of the budget, the approval of the head of the department or agency having supervision of the officer or employee alleged to have caused the injuries and of the attorney general." CPLR 5003-a(c), in pertinent part, states "[w]hen an action to recover damages has been settled and the settling defendant is the state...payment of all sums due to any settling plaintiff shall be made within ninety days of the comptroller's determination that all papers required to effectuate the settlement have been received by him."

Claimant argues that by the attorney general's office entering into the proposed settlement, it represented that all appropriate authorizations were in place and that the proposed settlement was actually a settlement pursuant to Court of Claims Act §20-a. Claimant's logic continues that since the matter was settled on March 29, 1999, then pursuant to CPLR 5003-a, claimant should have been paid.

Claimant's logic, however, is deficient on a number of grounds. First, assuming arguendo that a settlement did in fact take place, claimant has failed to prove the applicability of CPLR 5003-a. Claimant has not shown, and in fact can not show, that the comptroller has made a determination that the papers to effectuate a settlement are sufficient, thereby beginning the ninety day clock ticking for payment. (See Thomas v State of New York, Hon. Leonard Silverman, M -61309, filed October 11, 2000).

In addition, the Court can not concur in claimant's theory concerning Court of Claims Act §20-a. The record, as relied on by both parties, makes it abundantly clear that no settlement was reached on March 29, 1999. As previously noted, the record is clear that the defendant did not have the appropriate authorization from Stony Brook to settle. The assistant attorney general's only representation was that he would attempt to obtain the necessary approvals for the proposed amount. Court of Claims Act §20-a is not applicable in this instance because the parties were not entering into a stipulation.

In the event that the Court would not rule in claimant's favor based upon the statutes cited, claimant relies on the theory of "laches". Claimant argues that the defendant should be forced to settle the matter due to the time that has passed from the date of the proposed settlement. The parties were present in Court on March 29, 1999, defendant presented this case to Stony Brook on March 2, 2000, and thereafter informed the claimant of Stony Brook's rejection of the proposed settlement.

"The doctrine of laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party (see, Matter of Barabash, 31 NY2d 76; Dante v 310 Assoc., 121 AD2d 332). The mere lapse of time without a showing of prejudice will not sustain a defense of laches (see, Foley Mach. Co. v Amaco Constr. Corp., 126 AD2d 603; Goodfarb v Freedman, 76 AD2d 565)";(Skrodelis v Norbergs, 272 AD2d 316).

Claimant makes no showing of any prejudice that attached to his client. In addition, this Court can not say whether the delay is unreasonable or inexcusable. Claimant argues that the delay until December 2000 supports the theory of laches. However, the Court notes that the defendant can only be charged with the time until March 2000. The remainder of the elapsed time is chargeable to the claimant. The Court is unaware of any reason for claimant's delay in seeking an immediate trial after being informed of Stony Brook's decision in March 2000. While the delay by the defendant from March 1999 until March 2000, appears to be unreasonable the Court will decline comment since claimant has failed to show any prejudice.

Although the Court is sympathetic to claimant's plight in attempting to achieve a settlement, we are unable to grant claimant's motion pursuant to CPLR 5003-a and Court of Claims Act §20-a.

Based upon the above claimant's motion is denied.

April 4, 2001
Hauppauge, New York

Judge of the Court of Claims

  1. [1]This motion was reassigned to this Court due to the fact that the original return date of the motion was January 23, 2001, which was after the retirement of the Hon. Leonard Silverman.