Williams v Otero (2013 NY Slip Op 50476(U))

Williams v Otero

2013 NY Slip Op 50476(U) [39 Misc 3d 131(A)]

Decided on March 29, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Terry Williams, Appellant, —

against

Ralph Otero and MOHABIR RAMJH, Respondents. RALPH OTERO and MOHABIR RAMJH, Third-Party Plaintiffs, — MARIO BROCKMAN, Third-Party Defendant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), dated May 18, 2011. The order, insofar as appealed from, granted plaintiff's motion for the entry of a judgment pursuant to CPLR 5003-a, for an award of costs, and to set the matter down for a hearing to assess interest, only to the extent of directing defendants to tender payment, without interest or costs, upon

plaintiff's providing defendants, within a specified time, with a release containing "hold harmless" language.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs. [*2]

Plaintiff commenced this action in the Supreme Court, Kings County, to recover for serious physical injuries he had allegedly sustained in a motor vehicle accident. Issue was joined, and defendants commenced a third-party action. The case was subsequently transferred to the Civil Court pursuant to CPLR 325 (d). On April 15, 2010, the parties entered into a stipulation of settlement in open court, which provided for the payment of a specified sum to plaintiff upon receipt of "proper closing papers." Thereafter, defendants rejected plaintiff's tendered release because it did not contain the "hold harmless" language that had been referred to at the time the stipulation had been entered into. Plaintiff then moved for the entry of a judgment pursuant to CPLR 5003-a, for an award of costs, and to set the matter down for a hearing to assess interest. The Civil Court granted plaintiff's motion only to the extent of directing defendants to tender payment, without interest or costs, following plaintiff's providing defendants, within a specified time, with a release containing the "hold harmless" language. This appeal by plaintiff ensued.

CPLR 5003-a (a) provides that when "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 action." Upon a review of the stipulation entered into by the parties, we find that the term "proper closing papers" contained in the stipulation refers to a release containing "hold harmless" language, as indicated in open court at the time the stipulation was entered into. Consequently, since plaintiff has yet to tender a release with the requisite "hold harmless" language to defendants, plaintiff is not entitled to the entry of judgment or to an award of interest and costs, pursuant to CPLR 5003-a.