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Great Wall Acupuncture, P.C. As Assignee of Luis Lema v. Interboro Mutual Indemnity Ins

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department


December 19, 2011

GREAT WALL ACUPUNCTURE, P.C. AS ASSIGNEE OF LUIS LEMA,
APPELLANT,
v.
INTERBORO MUTUAL INDEMNITY INS.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint J.), entered October 6, 2009.

Great Wall Acupuncture, P.C. v Interboro Mut. Indem. Ins.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2011

PRESENT: RIOS, J.P., WESTON and GOLIA, JJ

The order denied plaintiff's motion for leave to enter judgment.

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action to recover the sum of $3,854.30 in assigned first-party no-fault benefits. In April 2006, the attorneys for plaintiff and defendant entered into a "Stipulation of Settlement," settling plaintiff's claim for the sum of $1,387.55, which amount had to be received by plaintiff's attorney within 30 days. The stipulation provided that, pursuant to CPLR 3215 (i) (1), defendant's failure to comply with its terms would result in the entry of judgment in the sum of $1,387.55, plus interest. The parties also executed a "Stipulation Discontinuing Action After Settlement," dated April 2006, which provided, among other things, that: "This stipulation may be filed with the Clerk of the Court without further notice to either party." Both parties agree that the stipulation of settlement did not become effective until August 8, 2007.

Thereafter, defendant sent plaintiff two checks, each dated September 7, 2007, totaling the sum of $1,387.55. Plaintiff's attorney stated that he did not receive any payment within 30 days as required by the terms of the stipulation of settlement and, therefore, negotiated a second stipulation with defendant which settled the claim for the sum of $3,250. Defendant signed and returned the second stipulation to plaintiff's attorney in October 2007. In the interim, plaintiff received defendant's two checks totaling $1,387.55, which plaintiff deposited on September 24, 2007. After defendant failed to pay the additional amount owed pursuant to the second stipulation, plaintiff attempted to enter judgment but, since defendant had already filed the April 2006 stipulation of discontinuance, the clerk would not enter judgment. Plaintiff subsequently moved for leave to enter judgment, which motion the Civil Court denied "based upon a review of all papers which indicate a settlement was entered into, payment was made upon it and checks were cashed without a reservation of rights."

It is uncontroverted that plaintiff signed a stipulation of discontinuance, with prejudice, which was filed in the Civil Court prior to plaintiff's attempt to enter judgment on the second stipulation. Since the instant action was terminated with the filing of the binding stipulation of discontinuance (see CPLR 2104), the relief requested by plaintiff was no longer available by motion in this action but, rather, plaintiff was required to commence a plenary action (see Teitelbaum Holdings v Gold, 48 NY2d 51 [1979]; Matter of Serpico, 62 AD3d 887 [2009]; Zeer v Azulay, 50 AD3d 781, 785 [2008]).

Accordingly, the order is affirmed, albeit on other grounds. We pass on no other issue.

Rios, J.P., Weston and Golia, JJ., concur.

Decision Date: December 19, 2011

20111219

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