On the evening of April 16, 1991, confirmed in Court on April 17, 1991 when the outline of the settlement was read into the record, the parties also agreed to the identity of the audits which could be offset, i.e., those finalized at the time of settlement.
Thereafter, however, the Order provided a condition that would take into account any offsetting audit adjustments as of the time of the payment, rather than settlement. Neiman met with the State the day before the trial to confirm the reopening of the rate appeals, but this was not disclosed before the settlement was reached or in the seven weeks that it took to resolve the Order.
The State confirmed the existence of the conditions upon which the Union had settled -- that the gross amount of the payment would be a little more than $ 8.7 million through April 30, 1991 and the net payment more than $ 7.1 million, and advised that the rate appeals had been sent to the Department of Budget.
After the Order was fully signed and in the course of inquiring when the payments were to be made, the Union learned that the rate appeals package had been retrieved from the Department of Budget and had been revised to provide Neiman with more than $ 3,000,000 in additional monies.
After Local 144 learned of Neiman's action, it chose not to upset the settlement but protested Neiman's conduct and informed him of a potential claim against him and complained to the Department of Health about the failure of the State to inform the Union about the handling of the rate appeals. At a meeting held in Albany on July 1, 1991, the responsible state officer conceded the failure to advise the Union of the change.
After that meeting, Local 144 was informed that the state would reinstate the original appeal package, upon which the settlement was negotiated. Thereafter, Neiman sought to alter the distribution of the settlement monies, an effort which was rejected by order of October 4, 1991 without prejudice.
The State thereafter requested documents on April 17, 1991 in connection with its audit. Counsel for Local 144 learned of the request on May 20, 1992 and Neiman's default in paying the second installment when due has already continued longer than the Union's alleged delay.
The accusation of bad faith is particularly disingenuous given the steps Local 144 has taken to assist Concourse in the audit. For example, although under no obligation to do so, Local 144 consulted with Neiman's attorneys concerning the response, and deferred to their requests as to how to respond. All the requested information has been provided.
Performance by Neiman has not been prevented by Local 144. Neiman knew in July 1991 of Local 144's position with respect to his claim for over $ 3 million in windfall monies and elected to receive the benefits of that settlement. The facts, as Neiman has alleged them, show only that Local 144 protested Neiman's conduct and the State's failure to disclose what had occurred in a timely fashion to the very parties whom the appeal monies were intended to benefit.
The cases cited by Neiman stand for the proposition that when a party to a contract prevents the other party from performing, he may not seek to excuse his own non-performance on the basis of the other party's failure to perform which he himself caused. See, e.g., Bass v. Sevits, 78 A.D.2d 926, 433 N.Y.S.2d 245, 247 (3d Dep't 1980); Heyliger v. Tune-Time Fashions, Inc., 39 A.D.2d 698, 332 N.Y.S.2d 253, 255 (1st Dep't 1972).
Here, Local 144 has abided by the May 28, 1991 Order and is now seeking compliance by Neiman. There is neither claim or evidence that Local 144 has failed in any obligation placed upon it by the Order.
To relieve Neiman of the obligation to pay or to delay the payment date prescribed in under the May 28, 1991 Order would be contrary to the explicit and limited procedure set forth in the Order for obtaining relief from its terms. That procedure requires an application to this Court to declare the Stipulation null and void if the state did not pay a lump sum of at least $ 7.1 million. The State paid more than that amount.
The motion to enforce the Order is granted, Neiman is held in contempt of this court's order and directed to pay the second installment of $ 132,972.17, plus interest within five (5) days of the entry of this opinion, and to pay a penalty of not less than $ 500 for each day thereafter that the installation remains unpaid without prejudice to its making of any further claims by Neiman arising out of, or independent of, the Order.
It is so ordered.
New York, N. Y.
September 22, 1992
ROBERT W. SWEET
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