Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on February 27, 2026

2025-383 Q C

Present: : Wavny Toussaint, P.J., Marina Cora Mundy, Lisa S. Ottley, JJ

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Andrea S. Ogle, J.), dated October 8, 2024. The order granted defendant's motion to vacate a judgment entered October 10, 2023 pursuant to default under a settlement.

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ORDERED that the order is modified by granting defendant's motion only to the extent of vacating so much of the October 10, 2023 judgment as awarded plaintiff $850 in attorney's fees; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Andrea S. Ogle, J.) dated October 8, 2024 granting the branch of defendant's motion seeking to vacate a judgment entered pursuant to CPLR 5003-a (e) on October 10, 2023 based on defendant's alleged failure to pay a settlement and implicitly denying, as moot, the branch of defendant's motion seeking the alternative relief of resettling and recalculating the judgment to eliminate the awards for attorney's fees and interest.

Plaintiff correctly argues that the Civil Court should not have granted defendant's motion on the ground that plaintiff failed to prove that the case had settled or that plaintiff had failed to prove that it had tendered a duly executed release and stipulation discontinuing the action [*2]pursuant to CPLR 5003-a (a), as defendant did not move on those grounds, and did not deny that the action had settled or claim that it had not received a release or stipulation of discontinuance.

We further find that defendant's remaining grounds for vacating the judgment lack merit.

However, we find that the clerk improperly awarded $850 in attorney's fees to the plaintiff since CPLR 5003-a (e) does not provide for such an award (see Liss v Bringham Park Coop. Apts. Sec. No. 3, 264 AD2d 717, 718 [1999]).

Accordingly, the order is modified by granting defendant's motion only to the extent of vacating so much of the October 10, 2023 judgment as awarded plaintiff $850 in attorney's fees.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: February 27, 2026