Medtech Medical Supply, Inc., as Assignee of Mary George, Respondent, v. Liberty Mutual Insurance Company, Appellant. (2025)

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff commenced this action in 2000 to recover assigned first-party no-fault benefits. The parties agreed to settle the matter, and plaintiff's counsel tendered to defendant's counsel a letter dated March 30, 2006, to which a general release and a stipulation of discontinuance were appended. After plaintiff applied to the clerk for the entry of a judgment pursuant to CPLR 5003-a (e) in June 2023, predicated upon the alleged failure of defendant to make prompt payment (see CPLR 5003-a [a]), a judgment was entered against defendant on September 14, 2023.

In October 2023, defendant moved to, among other things, vacate the judgment. One of defendant's arguments in support of its motion was that plaintiff failed to satisfy its CPLR 5003-a (a) obligations before entering judgment. Plaintiff opposed the motion, to which defendant replied. As limited by its brief, defendant appeals from so much of an order of the Civil Court (Ira R. Greenberg, J.) dated April 12, 2024 as denied the branch of defendant's motion seeking to vacate the judgment.

"The purpose of CPLR 5003-a is to encourage the prompt payment of damages in settled actions" (Pitt v New York City Hous. Auth., 106 AD3d 797, 797-798 [2013]). CPLR 5003-a (a) requires a settling defendant 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" (see Orthotics & Professional Supply, Ltd. v Country-Wide Ins. Co., 77 Misc 3d 130[A], 2022 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). In the context of CPLR 5003-a (a), "tender . . . shall mean either to personally deliver or to mail, by registered or certified mail, return receipt requested" (CPLR 5003-a [g]; see J.D.T. v Chaimowitz, 218 AD3d 821, 823 [2023]; DJS Med. Supplies, Inc. v American Tr. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52456[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). "If the settling defendant fails to pay the sum due under the settlement agreement within 21 days of tender of [a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff], the statute authorizes the plaintiff to enter, without further notice, a judgment in the amount of the settlement, which is to include interest, costs, and disbursements" (Klee v Americas Best Bottling Co., Inc., 76 AD3d 544, 545 [2010]; see CPLR 5003-a [e]).

While defendant contends that the judgment was improperly entered because plaintiff failed prove on its application to the clerk for the entry of a judgment pursuant to CPLR 5003-a (e) that it tendered to defendant the executed release and stipulation of discontinuance by personal delivery or by registered or certified mail, return receipt requested (see CPLR 5003-a [a], [g]), it was defendant's burden on its motion to vacate the judgment to show plaintiff's noncompliance with CPLR 5003-a (see Medtech Med. Supply, Inc. v Country-Wide Ins. Co., 74 Misc 3d 137[A], 2022 NY Slip Op 50304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). However, defendant submitted no evidence to show that plaintiff failed to tender the requisite documents to defendant in accordance with CPLR 5003-a.

Accordingly, the order, insofar as appealed from, is affirmed.

MUNDY, J.P., BUGGS and QUIÑONES, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: June 20, 2025