Howell v City of New York, 2018 NY Slip Op 07178 [1st Dept. 2018]
Once defendants failed to timely pay all sums due to plaintiff within ninety days of his tender of the requisite settlement documents (see CPLR 5003-a[b]), plaintiff was entitled to a judgment “for the amount set forth in the release, together with costs and lawful disbursements, and interest on the amount set forth in the release from the date that the release and stipulation discontinuing action were tendered” (CPLR 5003-a[e]). The parties no longer dispute that defendants did not timely pay plaintiff, they have stipulated to the amount of costs, disbursements, and interest plaintiff is due, and defendants have paid plaintiff that sum. Plaintiff is therefore not entitled to any further relief or monetary award.
Further, CPLR 5003-a(e) is specific about what may be contained in a judgment against a settling defendant who has not timely paid a plaintiff his settlement proceeds. Given the absence in that provision of any reference to prejudgment interest, there is no basis for departing from the “irrefutable inference … that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240).
We reject plaintiff’s argument that the term “interest,” as used in the stipulation of settlement, is unclear. Given that plaintiff was not entitled to postjudgment interest – or, for that matter, a judgment – at the time that he executed the stipulation of settlement, “interest” could [*2]not have referred to anything other than prejudgment interest. Coupled with his allocution to the settlement and the subsequent stipulation that no further costs or sanctions would be sought, we find that plaintiff unambiguously waived any right he may have had to pre-judgment interest.
Finally, since the parties have already stipulated that any judgment plaintiff was authorized by CPLR 5003-a(e) to enter has already been satisfied, and the record and briefs confirm that plaintiff has been paid all monies due to him, there is no need to grant plaintiff leave to enter a new judgment in place of the 2014 judgment.
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