Adone v Paletto
Annotate this CaseDecided on February 18, 2005
Supreme Court, Richmond County
Danielle Adone, an infant, by her father and natural guardian, DARRYL ADONE and DARRYL ADONE individually, Plaintiffs,
against
Christopher Paletto, ANTHONY PALETTO and CHRISTINE PALETTO, Defendants.
11928/03
Joseph J. Maltese, J.
On February 13, 2004, this court awarded the plaintiffs summary judgment on the issue of liability in this action by way of a decision entitled Danielle A., et al. v. Christopher P. et al, which was published at 3 Misc 3d 357 (2004), which had been appealed by the defendants.
On July 26, 2004, the defendants' counsel made an "Offer to Compromise" and settle the action pursuant to CPLR §3221 to the plaintiffs' counsel in the amount of $500,000 plus costs accrued to that date, which represented the entire available coverage under the defendant's insurance policy. CPLR §3221 states in part: at any time not later than ten days before trial, any party against whom a claim is asserted, and against whom a separate judgment may be taken, may serve upon the claimant a written offer to allow judgment to be taken against him for a sum or [*2]property or to the effect therein specified, with costs then accrued. If within ten days thereafter the claimant serves a written notice that he accepts the offer, either party may file the summons, complaint and offer, with proof of acceptance, and thereupon the clerk shall enter judgment accordingly. If the offer is not accepted and the claimant fails to obtain a more favorable judgment, he shall not recover costs from the time of the offer, but shall pay costs from that time. An offer of judgment shall not be made known to the jury.
On August 9, 2004, the parties appeared before this court for a settlement conference. At that conference in the presence of this court, the plaintiffs' counsel rejected the defendants' offer of $500,000 and made a demand of $700,000 to settle the case. The demand for $700,000 was clearly not an acceptance of the offer of compromise of $500,000, instead it was a counter-offer which rejected the $500,000 offer of compromise.
According to Norca Corp. v. Tokheim Corp., 227 AD2d 458 [2nd Dept 1996]), "An offeror need not say 'revoke' to effectuate a revocation (1 Farnsworth, Contracts § 3.17, at 249 [1990]). Where an offeror takes 'definite action inconsistent with an intention to enter into the proposed contract,' such action is considered a valid revocation (Restatement [Second] of Contracts § 43; see also, 1 Farnsworth, Contracts § 3.17, at 250 [1990])." As stated in Keryakos Textiles, Inc. v. CRA Dev., Inc. (167 AD2d 738, 739 [3rd Dept 1990] ) "it is well settled in contract law that the failure to accept an offer on the terms proposed constitutes rejection of the offer, which is thereby terminated barring any indication to the contrary by the offeror (see, 21 NY Jur 2d, Contracts, §§ 42, 53, at 461, 471). Nothing more than a counteroffer, which rejects and terminates the offer, is proposed where an offeree modifies or changes the terms of the offer (see, supra)."
Since plaintiff's $700,000 demand was not acceptable to the defendants and since the defendants had offered the plaintiffs the entire insurance policy of $500,000, the case was not settled and, at the request of counsel, on August 9, 2004 the case was sent to the Jury Coordinating Part to select a jury for trial. On September 24, 2004, the plaintiffs' counsel sent a letter to the defendants accepting the entry of a $500,000 judgment, which would include interest from the date of the summary judgment on February 13, 2004 and costs that was offered two months before on July 26, 2004. On September 28, 2004 that acceptance was rejected by the defendants in writing as untimely, because the statute clearly states that the acceptance must be within ten days of the offer.
When this case appeared before Justice Thomas P. Aliotta on October 25, 2004 in the Jury Coordinating Part, the defendants offered to settle the case for their entire insurance policy of $500,000, which the plaintiff accepted before being sent out to select a jury. Justice Aliotta marked the case "settled for $500,000" and took it off the trial calendar.
Now the plaintiff's counsel is moving for a judgment pursuant to the offer of compromise of $500,000 plus interest back to the date of the summary judgment on February 13, 2004, and costs and disbursements relating back to the July 26, 2004 offer of compromise. Defendants [*3]vigorously oppose this application claiming that is not what was agreed to on October 25, 2004.
Discussion
The plaintiffs' application is inappropriate and this court will not enforce it after the parties agreed to a sum certain without interest, costs and disbursements before another justice of this court.
It is clear to the court that the offer that was made on July 26, 2004 was never timely accepted by the plaintiff. It is also clear that at a conference before this court on August 9, 2004, that offer was rejected and the plaintiffs' counter offer of $700,000 was also rejected by the defendants. Therefore, there was no mutual consent to settle this case. On October 25, 2004 before Justice Aliotta in the Jury Coordinating Part the defendants again offered the full policy of $500,000, but this time without the interest, costs and disbursements. On that date the plaintiff agreed to accept the $500,000 as settlement in full.
If this court were to enforce a previously rejected offer of compromise three months after it was rejected it would breach the provisions of CPLR §3221 by extending the ten day rule contained within it without any consent of both parties. Disregarding the provisions of CPLR §3221 would constitute a usurpation of the legislative role in rewriting the statute. But more importantly, it would create chaos within the court system where after a settlement on a case was reached, counsel for the plaintiff would be allowed to add terms such as costs and disbursements and perhaps even interest. Counsel for the plaintiff orally argued that interest from the date of the summary judgment on liability on February 13, 2004, or in the alternative, when the offer of compromise was offered on July 26, 2004 and accepted on September 24, 2004, should be added by this court. In fact, those provisions were not included in the settlement agreement announced in court in front of Justice Aliotta.
The plaintiffs' attorney's affirmation stated that one of the reasons for finally accepting a settlement is that the parents of the infant plaintiff would rather not subject their daughter to the ordeals of a trial. That is why the defendant changed their counter proposal of settlement from $700,000 to $500,000. Yet, the plaintiff now seeks to resurrect the $500,000 offer of compromise of July 26, 2004 by adding the costs, disbursements and interest from the date of the summary judgment on liability.
Nonetheless, at the argument of this instant motion the defendants were still offering their $500,000 insurance policy in full to settle this matter and offered to withdraw their appeal of the liability summary judgment decision by this court and their cross-motion for costs, counsel fees and sanctions for this frivolous motion. But that was not agreeable to plaintiffs' counsel. Instead he demanded a judgment for the $500,000 plus interest and $1,837.89 in costs and disbursements.
This court finds and decides that the initial offer and compromise for $500,000 plus costs on July 26, 2004 was rejected by the counter offer of $700,000 on August 9, 2004. Moreover, the offer to settle this case in full for $500,000 without interest, costs and disbursements accepted before Justice Aliotta on October 25, 2004 is a separate and distinct offer and acceptance, which [*4]was an agreement to settle this case in full. If that was not the agreement, then the plaintiffs' counsel should have advised this court by way of motion to set aside that settlement, rather than seeking to have a judgment entered with the added provisions of interest, costs and disbursements, which were not part of the agreement to settle.
Accordingly, the plaintiffs' motion for a judgment to enforce the offer to compromise is denied. Since the defendants' counsel have withdrawn their request for sanctions, no sanctions against plaintiffs' counsel will be imposed.
A separate Infant's Compromise Order will be entered distributing the $500,000 settlement.
ENTER,
DATED: February 18, 2005
Joseph J. Maltese
Justice of the Supreme Court
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
