Dr. Alexander Berenblit, M.D., as Assignee of Albert Floyde, Appellant, v. Country Wide Insurance Company, Respondent. (2026)

ORDERED that the order is modified by granting defendant's motion only to the extent of vacating so much of the September 13, 2023 judgment as awarded plaintiff $850 in attorney's fees; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits for an accident which occurred in 1999, the parties entered into a settlement in May 2002, which provided that defendant would pay plaintiff the principal sum of $2,597.74, plus attorney's fees in the sum of $519.54 and filing fees in the sum of $105. Over 21 years later, plaintiff moved to enter judgment due to defendant's failure to pay pursuant to the stipulation. A judgment was entered on September 13, 2023 which awarded plaintiff, insofar as is relevant, the principal sum of $3,222.28, plus accrued compound interest, plus $850 in attorney's fees, for a total sum of $507,988.45.

Defendant moved to vacate the judgment arguing, among other things, that there was no enforceable settlement between the parties as defendant had not signed the settlement documents, that the statute of limitations had expired on plaintiff's claim for breach of a settlement agreement, and that plaintiff had failed to provide a five-day notice to defendant prior to entering judgment as required by CPLR 3215 (g) (1). The motion also sought, in the alternative, to vacate so much of the judgment as awarded compound interest and $850 in attorney's fees. By order dated July 9, 2024, the Civil Court (Ira R. Greenberg, J.) granted the branch of defendant's motion seeking to vacate the judgment, finding that defendant had sufficiently established that it did not receive tender of the duly executed release and the stipulation of discontinuance executed by the settling plaintiff, and that plaintiff failed to rebut this showing. The court denied, as moot, the branches of defendant's motion seeking alternative relief.

Contrary to the Civil Court's finding, defendant did not demonstrate that it had not received a duly executed release and stipulation of discontinuance. Thus, plaintiff did not need to establish that it mailed the duly executed release to defendant by registered or certified mail, return receipt requested (see CPLR 5003-a [g]).

We further find that defendant did not demonstrate that there was no enforceable settlement between the parties in this action. While plaintiff's proof of the settlement has no signature on defendant's behalf, the judgment entered September 13, 2023 stated that it was entered "per stipulation of the parties" and there is a note in the court record that the matter was settled at the time of the scheduled trial. "A presumption of regularity attaches to official court proceedings" (People v Pichardo, 168 AD2d 577, 577 [1990]), and an unsigned settlement may be enforceable (see CPLR 2104; Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369 [2005]; Friedman v Garey, 8 AD3d 129 [2004]). Here, defendant, on its motion to vacate the judgment, had the burden to prove that the matter was not settled, but failed to do so. Indeed, defendant initially did not move to vacate the judgment on the basis that the settlement was not enforceable; instead, defendant admitted that the matter had been settled in court prior to trial.

Next, we find that defendant's contention that the judgment should be vacated because its entry was subject to a six-year statute of limitations for breach of a contract, here a settlement agreement, to be without merit. "Entry of a default judgment for failure to comply with a stipulation of settlement is specifically provided for by CPLR 3215 (i) (1), which contains no time limit for entering such judgment" (Marine Midland Bank v Worldwide Indus. Corp., 307 AD2d 221, 222 [2003]; compare CPLR 3215 [c]). Moreover, here the stipulation referenced CPLR 5003-a and expressly permitted, without any time limit, an application for judgment based upon any future default in payment, CPLR 5003-a (e) similarly has no time limit, and courts have rejected the contention that enforcement of a stipulation, including entry of a default judgment, is barred by the statute of limitations (see Cook v Greenbaum, 18 AD3d 416 [2005]; Marine Midland Bank v Worldwide Indus. Corp., 307 AD2d 221; Arguelles, M.D., P.C. v AIG Natl. Ins. Co., 86 Misc 3d 132[A], 2025 NY Slip Op 51142[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

With respect to defendant's contention that, pursuant to CPLR 3215 (g) (1), plaintiff was required to notice defendant before judgment could be entered, we find this contention to similarly be without merit. As set forth in the settlement, any judgment was to be entered pursuant to CPLR 5003-a (e) which provides that no notice need be given to a settling defendant who has not paid. Consequently, the clerk was entitled to enter judgment without further notice to defendant.

Defendant's remaining arguments in support of the branch of its motion seeking to vacate the entire judgment lack merit (see Mundel v Harris, 199 AD3d 814, 815 [2021]; Arguelles, M.D., P.C. v AIG Natl. Ins. Co., 86 Misc 3d 132[A], 2025 NY Slip Op 51142[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

Defendant's contention that plaintiff was not entitled to recover compound accrued interest lacks merit. The claims in this case are "governed by the former regulations providing for compound interest because the accident occurred prior to the effective date of the current regulations, which now provide for a simple rate of interest" (New Life Acupuncture, P.C. v Country Wide Ins. Co., 81 Misc 3d 142[A], 2024 NY Slip Op 50120[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]; see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 155-156 [2021]; Health Value Med., P.C. v Country Wide Ins. Co., 66 Misc 3d 127[A], 2019 NY Slip Op 52036[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; compare former 11 NYCRR 65.15 [h], with 11 NYCRR 65-3.9 [a], effective April 5, 2002; see also Seaside Rehabilitation v Allstate Ins. Co., 62 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

However, the branch of defendant's motion seeking to vacate the $850 award of attorney's fees set forth in the judgment should have been granted, as CPLR 5003-a (e) does not provide for attorney's fees to be separately awarded in a judgment entered upon a settling defendant's failure to pay the settlement amount (see Liss v Brigham Park Coop. Apts. Sec. No. 3, 264 AD2d 717 [1999]).

Accordingly, the order is modified by granting defendant's motion only to the extent of vacating so much of the September 13, 2023 judgment as awarded plaintiff $850 in attorney's fees.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: February 27, 2026