Elite Psychological Servs., P.C. v Country-Wide Ins. Co.

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

Decided on February 27, 2026

2025-466 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 7, 2024. The order granted defendant's motion to vacate a judgment entered November 20, 2023 pursuant to a settlement.

ORDERED that the order is affirmed, with $25 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 7, 2024 granting defendant's motion to vacate a judgment entered pursuant to CPLR 5003-a (e) on November 20, 2023 based on defendant's alleged failure to pay a settlement. In its motion, defendant contended, among other things, that it was not in default of paying the settlement as plaintiff had failed to tender a duly executed release and stipulation discontinuing the action pursuant to CPLR 5003-a (a), and, therefore, defendant's obligation to pay the settlement had not been triggered.

CPLR 5003-a (a) requires a settling defendant to "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 executed on behalf of the settling plaintiff." In the context of CPLR 5003-a (a), "[w]here mailing is utilized, tender is defined as occurring upon the [*2]defendant's actual receipt of the general release and stipulation of discontinuance, and not on the date of mailing" (J.D.T. v Chaimowitz, 218 AD3d 821, 823 [2023] [internal quotation marks omitted]).

In support of its motion, defendant submitted an affidavit detailing defendant's counsel's practices and procedures for the receipt of mail (see Treka Med., P.C. v Travelers Ins. Co., 53 Misc 3d 133[A], 2016 NY Slip Op 51411[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), and, based thereon, explicitly denying that its office ever received a release and discontinuance in this case. Contrary to plaintiff's argument, this was sufficient to demonstrate, prima facie, that defendant never received the documents required by CPLR 5003-a (a) and, thus, that its obligation to pay the settlement had never been triggered (cf. Medtech Med. Supply, Inc. v Liberty Mut. Ins. Co., 86 Misc 3d 133[A], 2025 NY Slip Op 51150[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; Medtech Med. Supply, Inc. v Country-Wide Ins. Co., 74 Misc 3d 137[A], 2022 NY Slip Op 50304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). In its opposition, plaintiff failed to rebut that showing or submit any proof that it had tendered the requisite documents.

Plaintiff's remaining contentions lack merit.

Accordingly, the order is affirmed.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: February 27, 2026