Rombom v Liberty Mut. Ins. Co. (2025 NY Slip Op 25040)

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Martyn, Smith, Murray & Yong, Esqs. (Thomas M. Martyn and Danny Miller of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ira R. Greenberg, J.), dated April 12, 2024. The order granted the branch of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (4), to vacate a judgment of that court (Alan J. Schiff, J.) entered June 2, 2023 upon defendant’s failure to oppose plaintiff’s motion to enter judgment pursuant to CPLR 5003-a.

ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (4), to vacate the judgment entered June 2, 2023 is denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

Plaintiff commenced this action in 1995 to recover assigned first-party no-fault benefits. In December 1997, the parties agreed to settle the matter for $885.54, and plaintiff tendered a general release, executed by himself and counsel, and a stipulation of discontinuance to defendant’s counsel. It is uncontroverted that, on March 9, 1998, the stipulation of [*2]discontinuance was filed by defendant’s counsel ^[FN1] in the Queens County Civil Court clerk’s office without paying plaintiff the sum due him, which sum remains unpaid.

In June 2017, after plaintiff applied to the clerk for the entry of a judgment, in effect pursuant to CPLR 5003-a (e), the clerk rejected the application because, in relevant part, the signed stipulation of discontinuance had been filed. Plaintiff challenged this rejection in a CPLR article 78 proceeding to compel the clerk to enter judgment and, by order entered August 20, 2020, the Supreme Court, Queens County (Pam Jackman Brown, J.), dismissed the article 78 proceeding as time-barred. In April 2021, plaintiff moved in the Civil Court for leave to enter a judgment with interest pursuant to CPLR 5003-a, which motion was granted (Alan J. Schiff, J.) on default. A judgment in the amount of $376,022.05 was entered against defendant on June 2, 2023.

In October 2023, defendant moved, among other things, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate the default judgment. In an order dated April 12, 2024, the Civil Court (Ira R. Greenberg, J.) granted the branch of defendant’s motion seeking to vacate the default judgment pursuant to CPLR 5015 (a) (4), holding that because the stipulation of discontinuance had been filed by defendant on March 9, 1998, the action was terminated and the court was without jurisdiction to consider plaintiff’s CPLR 5003-a motion.

At the outset, we note that, “[w]hen a defendant moves to vacate a default judgment pursuant to CPLR 5015 (a) (4) and (a) (1), the court is required to resolve the CPLR 5015 (a) (4) jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur pursuant to CPLR 5015 (a) (1)” (see LVNV Funding, LLC v Alvarado, 83 Misc 3d 136[A], 2024 NY Slip Op 51203[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

“The purpose of CPLR 5003-a is to encourage the prompt payment of damages in settled actions” (Pitt v New York City Hous. Auth., 106 AD3d 797, 797-798 [2013]). CPLR 5003-a requires a settling defendant to “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 action executed on behalf of the settling plaintiff” (CPLR 5003-a [a]; see Orthotics & Professional Supply, Ltd. v Country-Wide Ins. Co., 77 Misc 3d 130[A], 2022 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). “If the settling defendant fails to pay the sum due under the settlement agreement within 21 days of tender of [a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff], the statute authorizes the plaintiff to enter, without further notice, a judgment in the amount of the settlement, which is to include interest, costs, and disbursements” (Klee v Americas Best Bottling Co., Inc., 76 AD3d 544, 545 [2010]; see CPLR 5003-a [e]). The tender [*3]of a stipulation of discontinuance by a settling plaintiff to a settling defendant is a condition precedent to a plaintiff’s CPLR 5003-a (e) relief when a defendant fails to make prompt payment. Under the circumstances presented, the filing of the stipulation of discontinuance by defendant without it ever paying the sum due to plaintiff did not deprive the court of jurisdiction to entertain plaintiff’s motion for leave to enter a judgment pursuant to CPLR 5003-a (e) (see e.g. Levine v American Multi-Cinema, Inc., 208 AD3d 1230 [2022]; Ishikawa v 3010 Whaleneck Realty Corp., 2023 NY Misc LEXIS 29966 [Sup Ct, Nassau County 2023]; Trinidad v McIntyre, 2021 NY Misc LEXIS 24023 [Sup Ct, Queens County 2021]; Sequinot v Lawrence, 2020 NY Misc LEXIS 49757 [Sup Ct, Westchester County 2020]).

As the Civil Court did not determine the remaining branches of defendant’s motion, including the branch seeking, in effect pursuant to CPLR 5015 (a) (1), to vacate the default judgment, the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Accordingly, the order is the order is reversed, the branch of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (4), to vacate the judgment entered June 2, 2023 is denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

BUGGS, J.P., OTTLEY and QUIÑONES, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: February 14, 2025