GEICO GENERAL INSURANCE COMPANY v. TIMES CAB CORP (2020)

I.

The following papers filed with the court on February 6, 2020 were read on this motion (“Motion”) by Plaintiff for judgement for prompt payment from Defendants pursuant to CPLR 5003-a during the coronavirus pandemic:

Papers Numbered

Notice of Motion of Judgement for Prompt Payment following Settlement dated January 16, 2020 1

Affirmation in Support of Judgement for Prompt Payment following Settlement (“Affirmation in Support”) dated January 16, 2020 2

Bill of Costs dated January 16, 2020 3

Exhibit A — Stipulation of Discontinuance dated July 9, 2019 4

Exhibit B — Subrogation Release for Property Damage dated July 10, 2019 5

Affidavit of Mailing of Notice of Motion of Judgement for Prompt Payment Following Settlement and Affirmation in Support upon Attorneys for Defendants dated January 23, 2020 6

II.

Upon the foregoing papers, it is ordered that this motion is determined as follows:

Plaintiff's motion for prompt payment pursuant to CPLR 5003-a is denied without prejudice.

While Plaintiff alleged that it “tendered to Defendant the release and stipulation in compliance with CPLR 5003-a(a)” (Affirmation in Support at 2), Defendants failed to timely pay all agreed sums “within twenty-one days of tender of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff” (CPLR 5003-a[a]). Defendants did not oppose Plaintiff's Motion.

In accordance with CPLR 5003-a(e), “[i]n the event that a settling defendant fails to promptly pay all sums as required by subdivisions (a) any unpaid plaintiff may enter judgement, without further notice, against such settling defendant who has not paid.” Furthermore, “[t]he judgement shall be for the amount set forth 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.”

In our instant matter, Plaintiff prayed for a judgement, pursuant to CPLR 5003-a, in the proposed settlement amount of $10,000.00, plus interest, costs and disbursements, claiming that Defendants failed to make the payment within twenty-one (21) days of Plaintiff's tender of the executed release and discontinuance (Affirmation in Support at 1-2). It is noted, however, that the copy of the stipulation of discontinuance presented by Plaintiff to this Court only bears the signature of Plaintiff without the signatures of Defendants or their attorneys. Pursuant to CPLR 2104, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered․” Here, Plaintiff's stipulation of discontinuance dated as of July 9, 2019 is not “effective” because it does not contain signatures from Defendants or their attorneys (Tortorello v. Carlin, 162 AD2d 291, 556 N.Y.S.2d 879 [1990 NY App. Div. 1st Dep't]), nor has Plaintiff provided any fact that such settlement was made in open court by counsels (CPLR 2104).

It is also noted that pursuant to CPLR 5003-a(g), the term “tender” as referred to in CPLR 5003-a(a) shall mean personal delivery, or “registered or certified mail, return receipt requested” (CPLR 5003-a[g]). Here, although Plaintiff stated that it had mailed “a duly executed release and a duly executed stipulation discontinuing the action” to Defendants' attorney on July 10, 2019 (Affirmation in Support at 2), it fails to provide this Court with any proof of mailing.

III.

Accordingly, Plaintiff's motion for prompt payment pursuant to CPLR 5003-a is denied without prejudice with leave to renew.

This constitutes the DECISION and ORDER of the Court.

Wendy Changyong Li, J.