JOHN TENCZA PLAINTIFF RESPONDENT v. ST ELIZABETH MEDICAL CENTER DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

JOHN TENCZA, PLAINTIFF–RESPONDENT, v. ST. ELIZABETH MEDICAL CENTER, DEFENDANT–APPELLANT.

CA 11–00388

Decided: September 30, 2011

PRESENT:  SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ. GALE & DANCKS, LLC, SYRACUSE (CATHERINE A. GALE OF COUNSEL), FOR DEFENDANT–APPELLANT. BRINDISI, MURAD, BRINDISI, PEARLMAN, JULIAN & PERTZ, LLP, UTICA (STEPHANIE A. PALMER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Defendant appeals from an order in this medical malpractice action that, inter alia, denied its motion seeking to vacate a judgment entered in plaintiff's favor pursuant to CPLR 5003–a and ordered defendant to pay costs, disbursements and interest on that judgment.   We affirm.   Contrary to defendant's contention, plaintiff satisfied his obligation pursuant to CPLR 5003–a by tendering a general release and stipulation of discontinuance to defendant's attorney.   The general release acknowledged the existence of a Medicare lien and provided “that a portion of the settlement will be paid to Medicare for [the] purpose[ ] of satisfying that lien.”   The parties thereafter agreed that defendant was permitted to withhold only $50,000 of the settlement to satisfy the Medicare lien.  “Neither CPLR 5003–a, nor the parties' stipulation of settlement, imposed any additional requirement on the plaintiff or his attorney” (Klee v Americas Best Bottling Co., Inc., 76 AD3d 544, 546).

Patricia L. Morgan

Clerk of the Court