Rodgers v State of New York

[*1] Rodgers v State of New York 2006 NY Slip Op 52533(U) [14 Misc 3d 1215(A)] Decided on November 30, 2006 Ct Cl Scuccimarra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 30, 2006
Ct Cl

Jessica M. Rodgers, Individually and as Administratrix of the Estate of Ian Basil Delong Rodgers, Deceased, Claimant(s)

against

The State of New York, Defendant(s).



101505



Claimant's attorney: Powers & Santola, LLP

By: John H. Fisher, Esq.

Defendant's attorney: Hon. Eliot Spitzer, New York State Attorney General

By: Pino & Associates, LLP

Brian W. Colistra, Esq.

Thomas H. Scuccimarra, J.

This was a claim against the Defendant State for the pain, suffering and wrongful death of Claimant's decedent, Ian Basil Delong Rodgers, who died on September 15, 1999. The matter was resolved with a stipulation of settlement spread upon the record on November 5, 2004, wherein Defendant agreed to pay the Claimant the sum of $3,500,000.00. A Stipulation Discontinuing the Action was filed in the Office of the Chief Clerk of the Court of Claims on November 19, 2004. It is counsel for the insurance carrier, Brian W. Colistra of Pino & Associates, LLP, who has appeared on Defendant's behalf throughout these proceedings, and is the only counsel of record.

Significantly, when counsel of record for the State of New York and the Claimant's attorney placed the settlement upon the record on November 5, 2004 they stipulated that payment from the Defendant- except for the portion of the payment that would be coming from the New York State Liquidation Bureau - would be made within the statutory 21-day period required by Civil Practice Law and Rules §5003-a. [Affirmation by John H. Fisher, ¶5, Exhibit A]. This helpful point - that there was an express agreement to pay within 21 days - was not brought out when Judgment was previously entered on June 22, 2005, nor when it was subsequently vacated without prejudice to a subsequent application by Claimant pursuant to the Court's Order filed July 20, 2005.

Civil Practice Law and Rules §5003-a provides in pertinent part that a settling defendant 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 [*2]action executed on behalf of the settling plaintiff." Civil Practice Law and Rules §5003-a(a). Although a State Defendant is generally required to make payment ". . . within ninety (90) days of the comptroller's determination that all papers required to effectuate the settlement have been received by him . . ." - rather than the twenty-one day limitation afforded other defendants - when an insurance carrier is involved, as is the case here, the ". . . insurance carrier shall pay all sums due to any settling plaintiff in accordance with . . . " the twenty-one day limitation. Civil Practice Law and Rules §5003-a (c).

The statute further provides that "[i]n the event a settling defendant fails to promptly pay all sums as required . . . any unpaid plaintiff may enter judgment, without further notice, against such settling defendant who has not paid. The judgment shall be for the amount stated 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." Civil Practice Law and Rules §5003-a(e).

After Counsel for Claimant received approval to settle the claim from Greene County Surrogate's Court - presumably as required by Letters issued by that Court - their office mailed a duly executed original general release and Stipulation of Discontinuance to Pino & Associates, LLP, by certified mail, return receipt requested. [Affirmation by John H. Fisher, ¶ 9, Exhibits B,C]. These documents were received by Defendant's Counsel on February 9, 2005. [Ibid. ¶ 10]. Accordingly, Claimant "tendered" the General Release and Stipulation of Discontinuance on February 9, 2005. Civil Practice Law and Rules §5003-a(g); Johnson v Karavassilis, 2 Misc 3d 341, 342 (Sup Ct, Kings County, 2003).

Although contacted on March 3, 2005 by telephone, Mr. Colistra advised he could not give any assurances as to when there would be payment by Defendant's liability carriers [FN1]. [Affirmation by John H. Fisher, ¶¶ 13,14]. Counsel for Claimant then extended the time within which Defendant was required to pay to March 8, 2005. [Id. Exhibit D]. No further extensions were discussed or granted. [Ibid. ¶¶ 15,16].

On March 14, 2005 Claimant received a check in the sum of $1,000,000.00 representing a portion of the settlement monies due, from OneBeacon Insurance Group through Goldberg Segalla, LLP, that was mailed on March 11, 2005. [Ibid. ¶ 24, Exhibit E]. Counsel for Claimant was mailed the remaining portion of the settlement funds - $500,000.00 - on March 31, 2005, which was received on April 1, 2005. [Ibid. ¶27, Exhibit F].

Counsel for Claimant indicates that although entry of a Judgment for interest calculated on the full amount of $3,500,000.00 is allowed by the statute, only interest on the principal sum of $1,500,000.00 is sought because the parties had stipulated that settlement monies paid by the New York Liquidation Bureau in the sum of $2,000,000.00 would not be subject to a deadline as to when the payment must be made. Notably, Claimant is generally entitled to interest on the full settlement amount despite receiving partial payment. See Mann v All Waste Systems, Inc., 293 AD2d 656, 657 (2d Dept 2002) lv denied 98 NY2d 610 (2002).

Accordingly, the Court finds that more than twenty-one days elapsed after the Claimant [*3]tendered a release and stipulation of discontinuance to the Defendant [Civil Practice Law and Rules §5003-a(a)[FN2]], and payment for all sums due was not timely made. "Payment" under the statute is measured upon mailing, not receipt in this case. See O'Reilly v State of New York, 164 Misc 2d 477 (Ct Cl 1995). As noted in O'Reilly v State of New York, supra, at 479, in enacting the statute ". . . what concerned the legislature was the failure of defendants to act promptly and not that funds be available to claimants within 21 days . . ."

In addition to a statutory right to interest, the parties also stipulated on the record to payment within 21 days of tender of the general release and stipulation of discontinuance.

The Bill of Costs is accepted as set forth in this application, in the total amount of $660.00. Claimant is entitled to the entry of Judgment for costs, disbursements and interest. Civil Practice Law and Rules §5003-a(e). Claimant has calculated interest at the rate of 9% per year on the amount of $1,500,000.00 as $369.86 per day, pursuant to Civil Practice Law and Rules §5004, reaching a figure of $18,862.86, based upon the fact that final payment was received on April 1, 2005. Instead, the Claimant is entitled to such interest from February 9, 2005 - the date the release and stipulation were received by Defendant - to March 31, 2005 - the date the last payment was mailed. The amount of interest owed, therefore, is $18,493.00. Accordingly, Judgment inclusive of interest, costs and disbursements should be entered in the amount of $19,153.00.

The Clerk of the Court is directed to enter Judgment in accordance with this Decision and Order. Footnotes

Footnote 1: For ease of reference the insurance companies involved, OneBeacon Insurance Group and Commercial Underwriters Insurance Company are referred to as Defendant's liability insurance carriers because for the purposes of this statute, those are the shoes they stand in, however tight.

Footnote 2: The Court agrees with the reasoning behind the Court analysis of "tender" in Johnson v Karavassilis, supra, and thus views receipt as memorialized in the certified mail receipt as constituting tender under the statute. This also conforms with how service of a Claim or notice of intention upon the Attorney General is accomplished generally in the Court of Claims. See Court of Claims Act §11 (a)(i).