Civil Court of the City of New York, Queens County, March 27, 2023

Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, for plaintiff.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, for defendant.

Plaintiff's motion to reargue pursuant to CPLR 2221 (d) is granted, as the court finds there were matters of law misapprehended in the decision dated December 7, 2021 (see decision, Rivera, J.). To that effect, CPLR 5003-a permits a stipulation of discontinuance to be relied on even if only executed "on behalf of the settling plaintiff" (id.). In other words, a defendant's signature is not required on a stipulation of discontinuance^[FN1] in making a motion under CPLR 5003-a (cf. Nationwide Affinity Ins. Co. of Am. v Ramales, 68 Misc 3d 1214[A], 2020 NY Slip Op 50931[U] [Civ Ct, Queens County 2020]). Conceptually, if a plaintiff were to possess a stipulation of discontinuance signed by the defendant, it would follow that plaintiff was also paid (see generally Mark C. Dillon, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C5003-a:1) and the necessity of a section 5003-a motion would be moot. This statute was meant to address the procedures and time limits for the payment of settlements (id.; see also Pitt v New York City Hous. Auth., 106 AD3d 797 [2d Dept 2013]) and not the substance of settlements.

In that regard, CPLR 2104 requires a settlement agreement to be in writing and subscribed by the settling party or their attorney for it to be binding and enforceable. CPLR 5003-a and 2104 are not mutually exclusive. For this reason, and because there is no sufficient [*2]evidence of settlement in this action,^[FN2] after reargument, the underlying motion to compel prompt payment must still be denied.{**79 Misc 3d at 244}

The court is aware that it has become custom and practice in these types of actions to rely on counsel's representations towards settlement. In other words, settlement agreements are not generally reduced to writing and following an oral agreement the parties will discuss exchanging "closing documents" (see generally CPLR 5003-a). Consequently, when there is an issue with payment, reliance can only be had on the prompt payment rule, as opposed to, for example, CPLR 3215 (i). Similarly, a motion made pursuant to CPLR 5003-a, in practice, triggers payment, albeit late, and obviates the need for the motion. This often results in the withdrawal of these motions.

It is instances like the one underlying this and the prior motion, however, that present an issue—when, despite custom and practice, and the tendering of closing documents, one party questions the legitimacy of an alleged settlement. Unfortunately, and although doing so will impact the efficiency of settlements in these types of cases, some writing evidencing the terms of the settlement agreement and mutual assent thereto should be available. This may include emails exchanged between the parties (see e.g. Herz v Transamerica Life Ins. Co., 172 AD3d 1336 [2d Dept 2019]) or notes made by the court in connection with a conference (see e.g. Rivers v Genesis Holding LLC, 11 Misc 3d 647, 649 [Sup Ct, NY County 2006]; cf. Kleiner v Thyssen El. Co., 12 Misc 3d 136[A], 2006 NY Slip Op 51272[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

In summary, plaintiff's motion to reargue is granted and, upon reargument, the request to compel prompt payment is denied.