CPLR § 5003-a “Tender”

CPLR § 5003-a. Prompt payment following settlement

DJS Med. Supplies, Inc. v American Tr. Ins. Co., 2008 NY Slip Op 52456(U) (App. Term, 2d)

CPLR 5003-a, enacted to encourage the prompt payment of damages in
settled actions, authorizes a settling plaintiff to enter judgment
against a settling defendant who fails to pay all sums as required by
the statute (see Cunha v Shapiro, 42 AD3d 95 [2007]). Insofar as
is relevant to the instant case, CPLR 5003-a (a) provides that the
settling defendant "shall 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"

(emphasis added). The term "tender," as used in the statute, is defined
as meaning "either to personally deliver or to mail, by registered or
certified mail, return receipt requested" (CPLR 5003-a [g]). Should the
settling defendant fail to make prompt payment of all sums due, the
unpaid plaintiff "may enter judgment, without further notice, against
such settling defendant who has not paid" (CPLR 5003-a [e]).

In order to avail itself of
the enforcement mechanism of CPLR 5003-a, an unpaid settling plaintiff
must adhere to the requirements of the statute by tendering a general
release and a stipulation of discontinuance and by waiting 21 days
following such tender
(see Cunha v Shapiro, 42 AD3d 95 [2007]; see also Dobler Chevrolet v Board of Assessors,
2001 NY Slip Op 50013[U] [Sup Ct, Nassau County 2002]). In the instant
case, plaintiff's submissions in support of its motion were
insufficient to prove its tender to defendant of the release and
stipulation of discontinuance. Accordingly, the order denying
plaintiff's motion is affirmed, albeit on different grounds. We pass on
no other issue.

All the bold is mine.

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