New York State Court of Claims

New York State Court of Claims

RODGERS v. THE STATE OF NEW YORK, #2005-030-528, Claim No. 101505, Motion No. M-69968


Synopsis



Case Information

UID:
2005-030-528
Claimant(s):
JESSICA M. RODGERS, Individually and as Administratrix of the Estate of IAN BASIL DELONG RODGERS, Deceased
Claimant short name:
RODGERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101505
Motion number(s):
M-69968
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
POWERS & SANTOLA, LLPBY: JOHN H. FISHER, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: PINO & ASSOCIATES, LLP,BRIAN W. COLISTRA, ESQ. OF COUNSEL
Third-party defendant's attorney:

Signature date:
May 5, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on Claimant's application for entry of a Judgment pursuant to Civil Practice Law and Rules §5003-a:
1-3 Judgment (proposed); Bill of Costs; Affirmation by John H. Fisher, Powers & Santola, LLP, attorneys for Claimant with attached exhibits

4-6 Filed Papers: Claim, Answer, Stipulation Discontinuing Action

No Opposition Filed[1]

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

This is a claim against the Defendant State for the pain, suffering and wrongful death of Claimant's decedent, Ian Basil Delong Rodgers, who died on September 15, 1999. The claim is based upon the Defendant's alleged violation of § 241(6) of the Labor Law, and 12 NYCRR § 23-9.7(d). The matter was resolved with a stipulation of settlement spread upon the record on November 5, 2004, wherein Defendant agreed to pay the Claimant the sum of $3,500,000.00. A Stipulation Discontinuing the Action was filed in the Office of the Chief Clerk of the Court of Claims on November 19, 2004. It is counsel for the insurance carrier, Brian W. Colistra of Pino & Associates, LLP, who has appeared on Defendant's behalf throughout these proceedings.

Civil Practice Law and Rules §5003-a provides in pertinent part that a settling defendant is required to 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." Civil Practice Law and Rules §5003-a(a). Although a State Defendant is generally required to make payment ". . . within ninety days of the comptroller's determination that all papers required to effectuate the settlement have been received by him . . ." - rather than the twenty-one day limitation afforded other defendants - when an insurance carrier is involved, as is the case here, the ". . . insurance carrier shall pay all sums due to any settling plaintiff in accordance with . . . " the twenty-one day limitation. Civil Practice Law and Rules §5003-a (c).

The statute further provides that "[i]n the event a settling defendant fails to promptly pay all sums as required . . . any unpaid plaintiff may enter judgment, without further notice, against such settling defendant who has not paid. The judgment shall be for the amount stated in the release, together with costs and lawful disbursements, and interest on the amount set forth in the release from the date that the release and stipulation discontinuing action were tendered." Civil Practice Law and Rules §5003-a(e).

After Counsel for Claimant received approval to settle the claim from Greene County Surrogate's Court - presumably as required by Letters issued by that Court - their office mailed a duly executed original general release and Stipulation of Discontinuance to Pino & Associates, LLP, by certified mail, return receipt requested. [Affirmation by John H. Fisher, ¶ 6-7 Exhibits A,B,C]. These documents were received by Defendant's Counsel on February 9, 2005. [ibid. ¶ 7, Exhibit C]. Accordingly, Claimant "tendered" the General Release and Stipulation of Discontinuance on February 9, 2005. Civil Practice Law and Rules §5003-a(g); Johnson v Karavassilis, 2 Misc 3d 341, 342 (Sup Ct, Kings County, 2003).

Although contacted in early March 2005 - both by letter and by telephone - Mr. Colistra advised he could not give any assurances as to when there would be payment by Defendant's liability carriers. [Affirmation by John H. Fisher, ¶¶ 10-13, Exhibit D]. Counsel for Claimant had extended the time within which Defendant was required to pay to March 8, 2005. [id.].

On March 14, 2005 Claimant received a check in the sum of $1,000,000.00 representing a portion of the settlement monies due from One Beacon Insurance Group through Goldberg Segalla, LLP. [ibid. ¶ 20, Exhibit E]. Although this represents partial payment by one of two of Defendant's liability insurance carriers[2], the statute requires that all sums due be paid within the prescribed time period.

Counsel for Claimant indicates that although entry of a Judgment for the full amount is requested as allowed by the statute, only interest on the principal sum of $1,500,000.00 is sought because the parties had stipulated that settlement monies paid by the New York Liquidation Bureau in the sum of $2,000,000.00 would not be subject to a deadline as to when the payment must be made. Notably, Claimant is generally entitled to interest on the full settlement amount despite receiving partial payment. See Mann v All Waste Systems, Inc., 293 AD2d 656, 657 (2d Dept 2002) lv denied 98 NY2d 610 (2002).

Accordingly, the Court finds that more than twenty-one days has elapsed since the Claimant tendered a release and stipulation of discontinuance to the Defendant, and payment for all sums due has not been made. The Court also awards sanctions in the amount set forth in the Bill of Costs attached to the application, $660.00. Claimant is entitled to the entry of Judgment in the full amount of $3,500,000.00 together with costs, disbursements and interest. Civil Practice Law and Rules §5003-a(e). Claimant has calculated interest at the rate of 9% per year on the amount of $1,500,000.00 as $369.86 per day, pursuant to Civil Practice Law and Rules §5004. The Claimant is entitled to such interest from February 9, 2005 - the date the release and stipulation were received by Defendant - to the date of entry of Judgment [Civil Practice Law and Rules §5003-a(e)[3]] with additional interest accruing at a rate of $369.86 per day through the date of final payment by the Defendant.

The Clerk of the Court is directed to enter Judgment in accordance with this Decision.



May 5, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]Although entry of Judgment is allowed without notice under Civil Practice Law and Rules §5003-a, applicable in the Court of Claims pursuant to Court of Claims Act §9(9), Defendant was notified of Claimant's application in order to facilitate the orderly entry of a Judgment herein if warranted.

[2] Defendant's liability insurance carriers subject to Civil Practice Law and Rules §5003-a are One Beacon Insurance Group and CUIC.

[3] The Court agrees with the reasoning behind the Court analysis of "tender" in Johnson v Karavassilis, supra, and thus views receipt as memorialized in the certified mail receipt as constituting tender under the statute. This also conforms with how service of a Claim or notice of intention upon the Attorney General is accomplished generally in the Court of Claims. See Court of Claims Act §11 (a)(i).