Pimental v DeJesus
Annotate this CaseDecided on November 9, 2009
Supreme Court, Bronx County
Miguel Pimental, an infant by his mother and natural guardian, SANTA REYES, and SANTA REYES individually, Plaintiffs,
against
Leoncio DeJesus, ELIZABETH CAHILL and CHASE MANHATTAN AUTO FINANCE CORP., Defendants.
26624/02
COUNSEL FOR THE PARTIES ARE AS FOLLOWS:
Attorneys for Defendant DeJesus:
Seiden & Kaufman,
One Old Country Road,
Carle Place, NY 11514.
Attorneys for Defendant Chase:
Wilson, Elser, Moskowitz, Edelman & Dicker
150 East 42nd Street,
New York, NY 10017.
Attorneys for Defendant Cahill:
Susan Lubowitz
700 White Plains Road
Scarsdale, NY 10583.
Attorneys for Plaintiff:
Block & O'Toole
One Penn Plaza, Suite 5315
New York, NY 10119.
George D. Salerno, J.
Defendant Leoncio DeJesus moves, pursuant to CPLR § 5015, for an order modifying the terms of a compromise order signed by this Court on May 9, 2007.
Miguel Pimental an infant, and his mother, were passengers riding in a motor vehicle owned and driven by defendant DeJesus. The DeJesus vehicle was involved in a motor vehicle [*2]accident with another vehicle driven by defendant Elizabeth Cahill that was leased from Chase Manhattan Auto Finance Corp., (Chase). As a result of this occurrence, Pimental and his mother Santa Reyes, sued DeJesus, Cahill and Chase.
A second separate negligence action was commenced by DeJesus for personal injuries arising from the collision that occurred between his vehicle and the vehicle driven by Cahill. Chase, well before the trial of the action instituted by Pimental, settled the action instituted by DeJesus. Releases were exchanged between the settling parties in the DeJesus lawsuit.
At some point, the precise date and time is unknown to this Court, a portion of the settlement between DeJesus and Chase was withheld by DeJesus' attorney presumably conditioned upon the jury's determination in the lawsuit started by Pimental regarding the potential culpable conduct of DeJesus. The letter dated August 2, 2006, between Wilson Elser Moskowitz Edelman & Dicker the law firm that represents Chase, and Richard Kaufman, the attorney representing DeJesus, memorializes their agreement to withhold $70,000, a portion of their settlement, pending Cahill and Chase's claim for contribution, and indemnification from DeJesus.
The attorneys representing defendant Cahill and Chase, and the attorney representing DeJesus who brought his own lawsuit against Cahill and Chase, charted their own course. Their agreement portrayed the circumstances that would affect the distribution of the $70,000 withheld by DeJesus' attorney who was retained to prosecute the personal injury action, premised on the findings by the jury in the lawsuit brought by Pimental. While it is evident that this Court's holding, that Cahill and Chase asserted a common-law indemnification claim against DeJesus arising from his culpable conduct in operating his motor vehicle, was overturned by the determination of the Appellate Division on July 1, 2008, the jury held DeJesus 30% liable for the accident which involved the vehicle he was driving and the car driven by Cahill and fixed DeJesus' proportionate share of the damages sustained by Pimental and the claim asserted by Santa Reyes, his mother.
The high-low agreement entered into between the attorneys representing Pimental and Reyes and the attorneys representing Cahill and Chase manifestly takes precedence over the jury's determination concerning Cahill and Chase's liability and the damages, sustained by Pimental and his mother.
However, DeJesus, by his attorney, opted out of the stipulation or high-low agreement. Consequently, DeJesus' monetary liability is fixed by the jury's finding regarding his percentage of fault, and the compromise order appropriately reflects the sum of money which DeJesus is required to pay Pimental based on the jury's findings. Thus, by the high-low agreement or stipulation and the separate agreement between DeJesus' personal injury attorney and Chase's attorneys, the parties effectively charted their own course, and limited the issues to be determined at trial instituted by Pimental which fashioned the contents of the compromise order signed and entered by this Court.
DeJesus' motion is premised on the authority provided by CPLR § 5015. A reading of this provision provides that the court maintains inherent power to vacate a judgment or order in the interests of justice. Therefore, the enumerated grounds set forth in CPLR 5015 are not intended to limit that power. (See Ruben v. American and Foreign Insurance Co., 185 AD2d 63,592 NYS2d 167, [4th Dept. 1992] ). However, the court's power is not plenary, (see Quinn v. Guerra, [*3]26 AD3d 872, 811 NYS2d 238 [4th Dept. 2006]), and should be resorted to where there is a clear presentation of mistake, inadvertence, surprise or excusable neglect.
Here, in the case at bar, the attorneys representing DeJesus claim that they "were forced" to place $70,000 of DeJesus' settlement in escrow. The basis for this statement is not supported and this issue, whether or not they were forced to place $70,000 in escrow, was not presented to this Court when it entertained the compromise order. The reality of DeJesus' motion is his request for this Court to reduce the amount which the infant plaintiff is entitled to receive, by amending the compromise order. DeJesus' claim is addressed to the wrong party. This court will not pursue a course of action that adversely affects the amount of money which the infant plaintiff is entitled to receive which appropriately reflects the jury's verdict regarding the monetary damages which the defendant DeJesus owed plaintiffs. In sum, this Court does not owe deference to the agreement entered into between DeJesus' attorney and the attorneys representing Cahill and Chase.
Moreover, the motion must be denied because the moving papers are deficient since they were not served upon all parties. CPLR 2103 (e) provides that "each paper served on any party shall be served on every other party who has appeared." See Siegel, New York Practice §203 (4th Ed. 2005). Here, movant failed to serve counsel for plaintiff Elizabeth Cahill, namely the law firm of Susan Lubowitz, Esq.
This constitutes the decision and order of this Court.
Dated:Nov. 9, 2009
Hon. George D. Salerno J.S.C.
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