SETTLEMENT AND CPLR 5003-A

 

JDT v. CHAIMOWITZ, 2023 NY Slip Op 3940 - NY: Appellate Div., 2nd Dept. 2023:

"Under CPLR 5003-a(a), "[w]hen an action to recover damages has been settled, any settling defendant . . . shall 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 the action . . . on behalf of the settling plaintiff." Where a settling defendant fails to pay all sums as required under CPLR 5003-a(a), "any unpaid plaintiff may enter judgment, without further notice, against such settling defendant who has not paid" (id. § 5003-a[e]; see Cunha v Shapiro, 42 AD3d 95, 101). Such judgment shall include "interest on the amount set forth in the release from the date that the release and stipulation discontinuing action were tendered" (CPLR 5003-a[e]). "[T]ender . . . shall mean either to personally deliver or to mail, by registered or certified mail, return receipt requested" (id. § 5003-a[g]; see Cunha v Shapiro, 42 AD3d at 101). "Where mailing is utilized, `tender' is defined as occurring upon the defendant's actual receipt of the general release and stipulation of discontinuance, and not on the date of mailing" (Cunha v Shapiro, 42 AD3d at 101 n 3; see Levine v American Multi-Cinema, Inc., 208 AD3d 1230, 1232).

Here, the plaintiffs contend that the duly executed releases were delivered to counsel for J. Anthony by email on June 4, 2019, and mailed to counsel for J. Anthony by priority mail on June 28, 2019. However, the plaintiffs failed to submit any proof demonstrating that they either personally delivered the duly executed releases to counsel for J. Anthony, or that they mailed the duly executed releases to counsel for J. Anthony by registered or certified mail, return receipt requested, as required by CPLR 5003-a(g) (see Cunha v Shapiro, 42 AD3d at 101; Nationwide Affinity Ins. Co. of Am. v Ramales, 68 Misc 3d 1214[A], 2020 NY Slip Op 50931[U] [Civ Ct, Queens County]). Although the plaintiffs submitted a receipt from the United States Postal Service that stated that delivery occurred on July 1, 2019, there is no return receipt in the record. Since the plaintiffs failed to establish under CPLR 5003-a that they tendered the duly executed releases to counsel for J. Anthony, the Supreme Court properly denied their motion pursuant to CPLR 5003-a to direct the entry of a judgment awarding them interest on the total amount of the two settlement payments made by J. Anthony, plus statutory costs and disbursements."