4-6 Filed Papers: Claim, Answer, Stipulation Discontinuing Action
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
, the statute requires that
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
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
] 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