Castillo v Red Spa Nail Inc.

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Castillo v Red Spa Nail Inc. 2018 NY Slip Op 32226(U) August 21, 2018 Supreme Court, Kings County Docket Number: 503789/2015 Judge: Carolyn E. Wade Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* FILED: 1] KINGS COUNTY INDEX NO. 503789/2015 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/11/2018 At Part 84 of the upreme Court of the State of Newtork, held in and for the County of :f<.ings, at the Courthouse, locat( d at Civic Center, Brooklyn, New York on th~I sday of Aug11st 2018 PRESENT: HON. CAROLYNE. WADE, Justice -------------------------------------------------------------------------)( WINDY CASTILLO and ALDONSA CASTILLO, Plaintiffs, against'"i--,., ., •. ~ DEtISION and ORDER . RED SP A NAIL INC. D/B/A RED SPA NAIL SALON, CONSTANTINO G. SARNI, CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF TRANSPORTATION, Defendants. -------------------------------------------------------------------------)( Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Plaintiffs' Cross-Motion: I Papers Order to Show Cause/Notice of Motion and Affidavits/ Affirmations Annexed ......................... Cross-Motion and Affidavits/ Affirmations .......... . Answering Affidavits/ Affirmations .................... .. Reply Affidavits/ Affirmations ............................. . Memorandum of Law .......................................... . 1 of 5 I umbered I --. ~ [*[FILED: 2] KINGS COUNTY CLERK 09/07/2018] INDEX NO. 503789/2015 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/11/2018 Upon the foregoing papers and after oral argument, plaintiff W ndy Castillo and Aldonsa Castillo ("Plaintiffs") cross-move for an Order: 1) entering judgment a'ainst defendant Red Spa Nail Inc. d/b/a Red Nail Salon ("Salon") in the sum of $120,000.00, as twenty-one days have accrued since Plaintiffs' tender of the release against defendant; and 2) denying Salon's Motion 1 to Strike the Note oflssue. I The underlying action was commenced by Plaintiffs to recover ~amages against I defendants Salon, Constantino G. Sarni ("Sarni"), City of New York a4d New York City i Department of Transportation, for personal injuries that Windy Castill1 allegedly sustained on February 13, 2014, when she slip and fell on the sidewalk in front of Sllon's store. t, By Order of the Hon. Francois Rivera, JSC, dated April 4, 20181 and signed by the I appearing parties, all claims and cross-claims against defendants City fNew York and New York City Department of Transportation were discontinued with preju ice. Sarni failed to answer the pleadings. As a result, Justice Genovesi signed a default ju gment order, dated April 22, 2016, which directed that an inquest to be held at the time of trial. While discovery was underway, Plaintiffs and Salon agreed to . ttle the matter for $120,000. However, differences arose between the parties as to the ter s of the proposed release that was drafted by Salon. The instant motion ensued. In support of the instant application, Plaintiffs note that Salon ent it a stipulation of By Order, dated April 4, 2018, Justice Rivera resolved Defendant ~ed Spa Nail, Inc's underlying motion to vacate the note of issue, by ordering Plaintiffs IME to ~e noticed within 45 days, and held within 45 days of the notice. The ruling further indicated that th~ Note oflssue would not · 1 be stricken. Thus, this branch of the instant cross-motion is rendered mpot. 2 2 of 5 [*[FILED: 3] KINGS COUNTY CLERK 09/07/2018] INDEX NO. 503789/2015 RECEIVED NYSCEF: 09/11/2018 NYSCEF DOC. NO. 60 discontinuance, dated November 6, 2017, and a proposed release. Ho ever, the release indicated that Sarni would be released from liability. Plaintiffs refuse~ to signed the release on I the grounds that Salon did not represent Sarni, and that they had alrea+ obtained a default judgment order against him. They subsequently tendered to Salon the~r own duly executed release and stipulation of discontinuance on February 7, 2018; yet, thet' adversary did not pay th~ I · . I settlement within twenty-one (21) days of receipt, pursuant to CPLR § 15003-a. Plaintiffs now seek a judgment against Salon for $120,000. Salon, in opposition, argues that it did not sign the release proflred by Plaintiffs, as it was deemed unacceptable. To buttress its averment, Salon's counsel annexes a copy of a February 20, 2018 letter that it sent to Plaintiffs' attorney, which mem rializes the rejection of the proposed release (Exhibit "A" of Salon's opposition). Salon assert that after Plaintiffs refused to sign its release, the parties began to negotiate a resolution, i luding increasing the agreed upon $120,000 offer. Salon contends that since both parties d,is greed about the release I language, a settlement was not in place. In rebuttal, Plaintiffs maintain that their proposed release and st pulation of discontinuance contained the settlement terms agreed to by the parties, ~ut excluded defaulting defendant Sarni. Since more than twenty-one (21) days have accrued s · ce Plaintiffs' tender of the settlement documents to Salon, they request that the court enter a j Salon for $120,000 plus interest, costs, and disbursements. I 3 3 of 5 gment against defendan~ [*[FILED: 4] KINGS COUNTY CLERK 09/07/2018] INDEX NO. 503789/2015 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/11/2018 CPLR § 5003-a (a) provides, in relevant part, that: When an action to recover damages has been settled, a settling defendant. .. shall pay all sums due to any settling plaintlff within twenty-one days of tender, by the settling plaintiff to th· settling defendant, of a duly executed release and a stipulation I discontinuing action executed on behalf of the settling laintiff. I Moreover, CPLR § 2104 states: An agreement between parties or their attorneys relatin~ to any matter in an action, other than one made between coun$1 in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the foITll- of an order and entered. With respect to stipulations of settle ent and notwithstanding the form of the stipulation of settleme , the terms of such stipulation shall be filed by the defendant with e county clerk. In the instant case, an examination of the release drafts betwee Plaintiffs' and Salon's counsel discloses that the two parties disagreed over the substantive teyns of the settlement; particularly regarding the release of Sarni from this action. Salon's Feiruary 20, 2018 written I• rejection of Plaintiffs' proffered settlement documents further evideq.c s that the matter has not II I settled (See Curcio v JP. Hogan Coring & Sawing Corp., 303 AD2d 57, 358-359 [2d Dept 4 4 of 5 WILED: KINGS COUNTY CLERK 09/07/2018] [* 5] INDEX NO. 503789/2015 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/11/2018 2003]). Consequently, this Court determines that this action has nots tled within the purview of CPLR § 5003-a (a) and CPLR § 2104. I Accordingly, based upon the above, Plaintiffs' Cross-Motion t Enter Judgment against Salon, inter alia, is DENIED. Furthermore, as the Note oflssue would not be stricken pursuant to Justice Rivera's order dated April 4, 2018, that branch of Plaintiffs ross-Motion is DENIED as moot. This constitutes the Decision and Order of the court. I ACTING SUPREME C URT JUSTICE I . -· -=::- '~~) (/) CJ ·._J ~ -...! ~ .. -.J w (,j) 5 5 of 5 I J (j~ f'' _,~ '·=--" :~; ~J-' .. _._,,. ~ c; I r"· ,~:-: :;.-..J ::r.:

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