April 13, 2012

Preferred Servs. v Country Wide Ins. Co. (2012 NY Slip Op 22098)

https://www.beynensonlaw.com/case-law/preferred-servs-v-country-wide-ins-co-2012-ny-slip-op-22098/

Court
Appellate Term, First Department
Decided
April 13, 2012
Citation
2012 NY Slip Op 22098 · 35 Misc 3d 66
Posture
Other motion
Outcome
Insurer prevailed
Issues
Other
Cite as
Preferred Servs. v Country Wide Ins. Co., 35 Misc 3d 66 (App Term, 1st Dept 2012)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's acquiescent conduct bound it to the insurer's revised settlement terms and required reduction of the consent judgment. The insurer's counsel marked and initialed changes extending the payment period and reducing the payment obligation upon noncompliance. The provider raised no objection and undertook no further litigation for six months, then entered judgment under its original proposal. Because the provider acknowledged an enforceable settlement and accepted the revisions through its conduct, the Appellate Term, First Department, modified the order to grant the insurer's motion to reduce the judgment to $1,251. The judgment was a consent judgment, so the motion court erred in applying default-vacatur law.

Reported in New York Official Reports at Preferred Servs. v Country Wide Ins. Co. (2012 NY Slip Op 22098)

Preferred Servs. v Country Wide Ins. Co.
2012 NY Slip Op 22098 [35 Misc 3d 66]
Accepted for Miscellaneous Reports Publication
AT1
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 20, 2012

[*1]

Preferred Services, as Assignee of Oreste Civil, Respondent,
v
Country Wide Insurance Company, Appellant.

Supreme Court, Appellate Term, First Department, April 13, 2012

APPEARANCES OF COUNSEL

Jaffe & Koumourdas, LLP, New York City (Ariel S. Lichterman of counsel), for appellant. Gina Gleicher and Leon Kucherovsky, New York City, for respondent.

{**35 Misc 3d at 67} OPINION OF THE COURT

Per Curiam.

Order entered April 9, 2010, modified by granting defendant’s motion to the extent of reducing the amount of the judgment entered against it to the aggregate sum of $1,251; as modified, order affirmed, without costs.

The parties agree that the underlying no-fault first-party action was validly settled, but join issue as to the intended amount of the settlement. The facts leading up to the settlement are undisputed and may be briefly stated as follows: Plaintiff, through counsel, drafted and presented a proposed settlement agreement, dated October 21, 2008, which set forth all material terms of the settlement and provided, in paragraph 4, that “[t]his case is not settled unless this stipulation is signed by a representative of defendant and faxed back to [plaintiff’s attorney].” Upon receipt of plaintiff’s proposal, defense counsel made and initialed several handwritten changes to paragraph 2 of the document—addressing the consequences of a payment default on defendant’s part—with the changes designed to extend the time allotted to defendant to comply with the agreement’s payment terms and, more importantly here, to reduce defendant’s payment obligations in the event it failed to comply. So far as shown, plaintiff voiced no objection to the modifications proposed by defendant nor took any other action in the case for a full six months after defense counsel marked up and returned the stipulation, until March 2009, when plaintiff entered judgment in accordance with the original terms of the stipulation favorable to it.

Given the particular facts and circumstances of this case, and since plaintiff itself acknowledges that the parties’ correspondence yielded an enforceable settlement agreement, we conclude that plaintiff, through “acquiescent conduct” (Eldor Contr. Corp. v County of Nassau, 272 AD2d 509, 509 [2000])—including its election to forgo any further litigation activity on its no-fault claim—accepted and is bound by the stipulation’s revised terms (see Minelli Constr. Co., Inc. v Volmar Constr., Inc., 82 AD3d 720, 722 [2011]). Accordingly, the amount of the consent [*2]judgment issued below must be reduced to the stipulated principal sum of $950, together with the stipulated attorney’s fees ($196) and costs ($105) due plaintiff.

We note finally that the judgment at issue “is not a default judgment as that term is used in pleading and practice, and [the{**35 Misc 3d at 68} motion court’s] application of law relating to vacating default judgments was erroneous” (Furgang v Epstein, 106 AD2d 609, 610 [1984]).

Torres, J.P., Shulman and Hunter, Jr., JJ., concur.

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