8-12 Filed Papers: Claim, Answer, Stipulation Discontinuing Action; Rodgers
v State of New York, Decision and Order, Claim No. 101505, Motion No.
M-69968 (Scuccimarra, J., June 15, 2005)(and underlying papers); Rodgers v
State of New York, Order, Claim No. 101505, Motion No. M-69968 (Scuccimarra,
J., July 20, 2005)(and underlying papers)
This was 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 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, and is the only counsel of record.
Significantly, when counsel of record for the State of New York and the
Claimant’s attorney placed the settlement upon the record on November 5,
2004 they stipulated that payment from the Defendant- except for the portion of
the payment that would be coming from the New York State Liquidation Bureau -
would be made within the statutory 21-day period required by Civil Practice Law
and Rules §5003-a. [Affirmation by John H. Fisher, ¶5, Exhibit A].
This helpful point - that there was an express agreement to pay within 21 days -
was not brought out when Judgment was previously entered on June 22, 2005, nor
when it was subsequently vacated without prejudice to a subsequent application
by Claimant pursuant to the Court’s Order filed July 20, 2005.
Civil Practice Law and Rules §5003-a provides in pertinent part that a
settling defendant 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 (90) 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, ¶ 9, Exhibits
B,C]. These documents were received by Defendant’s Counsel on February 9,
2005. [Ibid. ¶ 10]. 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 on March 3, 2005 by telephone, Mr. Colistra advised he could
not give any assurances as to when there would be payment by Defendant’s
. [Affirmation by John H.
Fisher, ¶¶ 13,14]. Counsel for Claimant then extended the time within
which Defendant was required to pay to March 8, 2005.
No further extensions were discussed or granted. [Ibid.
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 OneBeacon Insurance
Group through Goldberg Segalla, LLP, that was mailed on March 11, 2005.
[Ibid. ¶ 24, Exhibit E]. Counsel for Claimant was mailed the
remaining portion of the settlement funds - $500,000.00 - on March 31, 2005,
which was received on April 1, 2005. [Ibid. ¶27, Exhibit F].
Counsel for Claimant indicates that although entry of a Judgment for interest
calculated on the full amount of $3,500,000.00 is 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 elapsed after the
Claimant tendered a release and stipulation of discontinuance to the Defendant
[Civil Practice Law and Rules
], and payment for all sums due
was not timely made. “Payment” under the statute is measured upon
mailing, not receipt in this case. See O’Reilly v State of New
, 164 Misc 2d 477 (Ct Cl 1995). As noted in O’Reilly v State of
, at 479, in enacting the statute “. . . what
concerned the legislature was the failure of defendants to act promptly and not
that funds be available to claimants within 21 days . . .”
In addition to a statutory right to interest, the parties also stipulated on
the record to payment within 21 days of tender of the general release and
stipulation of discontinuance.
The Bill of Costs is accepted as set forth in this application, in the total
amount of $660.00. Claimant is entitled to the entry of Judgment for 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, reaching a figure of $18,862.86, based upon the fact that final
payment was received on April 1, 2005. Instead, the Claimant is entitled to
such interest from February 9, 2005 - the date the release and stipulation were
received by Defendant - to March 31, 2005 - the date the last payment was
mailed. The amount of interest owed, therefore, is $18,493.00. Accordingly,
Judgment inclusive of interest, costs and disbursements should be entered in the
amount of $19,153.00.
The Clerk of the Court is directed to enter Judgment in accordance with this
Decision and Order.