New York State Court of Claims

New York State Court of Claims

LaMENDOLA v. NEW YORK STATE THRUWAY AUTHORITY, #2008-031-067, Claim No. 93132 and 93133, Motion No. M-75816


Defendant’s motion for suspension of interest on judgments is granted

Case Information

LEE C. LaMENDOLA, as Administrator of the Estate of PAUL LaMENDOLA, SR., Deceased and MARIE LaMENDOLA CANNIZZARO, GINO P. LaMENDOLA, as Administrator of the Estates of DEBORAH LaMENDOLA, NICHOLAS LaMENDOLA and CHESA LaMENDOLA, Deceased; LEE C. LaMENDOLA, as Guardian of PAUL LaMENDOLA, JR., an Infant, and LAUREN LaMENDOLA, an Infant
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93132 and 93133
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 18, 2008

Official citation:

Appellate results:

See also (multicaptioned case)

The following papers were read on motion by Defendant for the suspension of interest on the judgments entered in these related claims:
1) Defendant’s Notice of Motion, filed November 5, 2008;
2) Affidavit of Richard B. Friedfertig, Esq., sworn to November 4, 2008;
3) Affirmation of Julie S. Mereson, Esq., dated October 3, 2008, with attached exhibits;
  1. Affirmation of Harvey C. Siverstein, Esq., dated October 29, 2008;
5) Affidavit of Ronald J. Wright, Esq., sworn to December 10, 2008, with exhibits.With this motion, Defendant requests that the Court suspend interest that is accruing on portions of judgments entered in the above-referenced claims. By way of background, the underlying claims relate to a tragic motor vehicle accident that devastated an entire family. That accident occurred in 1995. Claimant Lauren was 7 years old. Claimant Paul Jr. was 6 years old. In 2000, Defendant was determined to be 100% liable for that accident. Claimant Lauren was 12 years old. Claimant Paul Jr. was 11 years old. In 2004, the damages award was entered. Claimant Lauren was 17 years old. Claimant Paul Jr. was 15 years old.

After protracted negotiations, then conferences, and then hearings related to CPLR 50-B issues, an Order directing entry of the 50-B Judgments was filed on February 5, 2008. Claimant Lauren is now 21 years old and her brother, Paul Jr., is now 19 years old.

Since the judgments were entered in February, Claimants and Defendant have both filed appeals relating to the damages awards. Defendant, however, conceded liability for a portion of the damages awarded. Specifically, as set forth in paragraph 3 of the Affirmation of Harvey C. Silverstein, Esq., Supervising Attorney in the Office of the State Comptroller, Defendant agreed to pay “approximately $8,965,000."

On June 17, 2008, Defendant forwarded to Claimants’ counsel a stipulation designed to permit the New York State Comptroller to pay to Claimants the “undisputed portions of the judgment and the undisputed interest thereon, while further appellate proceedings are pending” (Exhibit F, par. G). That stipulation also contained language which clearly set forth that no rights were being waived with respect to either appeal. It required Defendant to expeditiously process the paperwork for payment to Claimants and it required of Claimants only that they execute the usual and standard documents necessary to effectuate payment. The document also contained a waiver of attorney’s lien as it related to that partial payment.

The stipulation was clear on its face. Defendant desired to pay those portions of the monies that it knew it had to pay sooner, rather than later. Defendant maintains that Claimants have unreasonably and improperly refused to execute the stipulation. It is Defendant’s position that, because Claimants would not execute the stipulation, payment to Claimants, though offered, could not be made and interest on this sum continues to accrue in the approximate amount of $3,200.00 each day.

In opposition to Defendant’s motion, Claimants argue that, Defendant’s intention to make partial payment aside, the stipulation itself was neither clear, nor the same thing as tender of payment. Accordingly, Claimants argued that the requirements necessary to suspend interest contained in Court of Claims Act (“CCA”) § 20(5-a) have not been met.

Defendant’s intent in sending the stipulation is manifestly clear. It wanted to pay those portions of the judgments that it knew it had to, and stop accruing interest. Claimants’ counsel has taken no action to facilitate the payment of these monies. Their protestations at oral argument that the stipulation was vague, that they were confused as to what Defendant was trying to accomplish, and that they were trying to work this issue out, are undercut by their utter silence between receipt of the stipulation in mid-June and at least mid-October. Claimants’ counsel did not sign and forward the stipulation, nor did Claimants’ counsel contact Defense counsel to inquire about any confusing or vague terms contained in the stipulation. Of course, Defendant could have simply deposited the money in a special account and given Claimants the 20-day notice, pursuant to CCA § 20(5-a) and avoided this whole issue.

Claimants are correct, however, in pointing out that I have no authority to suspend interest pursuant to CCA § 20(5-a). That section provides for a suspension of interest but only after the comptroller places the uncontested part of judgment into a special account and gives notice to Claimant. That section reads:
“Where an appeal has been taken by either the claimant or the state or by both the claimant and the state from all or part of a judgment of the court of claims, the comptroller, upon the recommendation of the attorney general may deposit in a special account all or any part of the amount directed to be paid in the judgment. Interest on the amount deposited shall not be allowed from the expiration of twenty days after notification in writing by the comptroller to the claimant or his attorney that the comptroller is ready and willing to pay said amount upon presentation of the instruments and vouchers required by law to be filed in his office. Upon presentation of such instruments and vouchers the comptroller is authorized to pay said amount, with interest as herein provided, to the claimant. Any such deposit or payment shall be without prejudice to the rights of the state or the claimant on such appeal” (Emphasis added).
I agree with Claimants that a suspension of interest is not warranted under CCA § 20(5-a). However, I find that CCA § 20(7) does justify the suspension of interest in this instance. CCA § 20(7) provides that “Interest shall be allowed on each judgment of the court of claims from the date thereof until payment is actually made . . . ” In Matter of O’Shea v State of New York, Office of Comptroller (281 AD2d 774, 777), the Third Department determined that (apart from appropriation claims, which have independent provisions for the suspension of interest) there is no provision for “discretionary suspension of interest” on Court of Claims judgments. However, although not mentioned by counsel, CCA § 20(7) does contain two exceptions. The first relates to a situation where there is no appeal, but the claimant fails to forward the certificate of no appeal. This does not apply in this instance. The second exception, however, does. CCA § 20(7-b) provides:
“. . . interest shall be suspended and shall not be allowed:

b. In the event a satisfaction of judgment and waiver of attorney’s lien is not forwarded within thirty days after mailing of said satisfaction of judgment and waiver of attorney’s lien by the attorney general, interest shall be suspended for the period of time from the date of mailing the satisfaction of judgment and waiver of attorney’s lien to the date that the same is received by the comptroller.”
I find that the stipulation which contained a waiver of attorney’s lien and which preserved all rights on appeal was the functional equivalent of a satisfaction of judgment and waiver of lien. Accordingly, Claimants’ failure to forward the stipulation within thirty days requires that interest be suspended from the date that the stipulation was mailed to Claimants, June 17, 2008.

Accordingly, it is hereby

ORDERED, that Defendant’s motion for suspension of interest is granted. Interest on those portions of the judgments that Defendant attempted to pay is hereby suspended as of June 17, 2008 to the date that the satisfaction of judgment and waiver of attorney’s lien is received by the comptroller.

December 18, 2008
Rochester, New York

Judge of the Court of Claims