In re Revici

68 A.D.2d 828, 414 N.Y.S.2d 165, 1979 N.Y. App. Div. LEXIS 11023

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 1979
• Status: Published

Opinions

Order of the Supreme Court, New York County, entered August 30, 1978, directing the entry of judgment for the amount specified in the stipulation between the parties affirmed, without costs and without disbursements. The controversy here involved arises out of the judicial dissolution of Trafalgar Hospital (Trafalgar), pursuant to Not-For-Profit Corporation Law (§ 1102, subd [a], par [1], cl [A]). By order dated January 31, 1978, Blue Cross/Blue Shield, among others, was directed to show cause why it should not account and forthwith turn over to Trafalgar all funds then held in escrow for its benefit. Before the application came on to be heard, a stipulation was entered into between counsel for Trafalgar and Blue Cross/Blue Shield pursuant to the terms of which the amount owed by Blue Cross/Blue Shield to Trafalgar was fixed in the sum of $45,303.43, computed by deducting certain stipulated sums from processed allowable claims. It was further agreed that specified adjustments due from either party to the other were not included in the stipulation and that in the event unrefunded subscriber deposits, one of the items deducted in reaching the sum of $45,303.43, exceeded the amount fixed, Blue Cross/Blue Shield would be permitted to deduct "these paid claims from other monies due Trafalgar Hospital” (emphasis supplied). The remaining proviso required payment upon the performance of certain acts by Trafalgar. It is undisputed that Trafalgar performed the acts required of it by the stipulation. Its demand for payment of the sum fixed by agreement was met by the contention that adjustments due Blue Cross/Blue Shield for prior years, which, as our dissenting brother notes, had not yet been determined, exceeded the amount due Trafalgar under the agreement; that Blue Cross/ Blue Shield is entitled to set off this indebtedness against the debt owing from it to Trafalgar and, by consequence, there is nothing due to Trafalgar. That the parties knew and understood precisely what they were doing is apparent from the stipulation itself. In the final paragraph they provided that if the unrefunded subscriber deposits exceeded the amount fixed by the agreement, Blue Cross/Blue Shield would be permitted to deduct the excess from other payments due to Trafalgar. In the penultimate paragraph, the paragraph critical to this case, they expressly excluded from the ambit of the stipulation rate adjustments for prior years and other items. Had they intended that these were to be deducted from the amount due, they could easily have manifested that intention in their treaty. Their failure to do so makes it plain, and indeed the stipulation itself so states, that payment of the amount fixed was to be made upon the performance by Trafalgar of the acts set forth in the agreement. Since Trafalgar has performed the obligations undertaken by it, it is entitled to the payment provided for. Special Term so held. We agree. Concur—Kupferman, J. P., Evans, Fein and Bloom, JJ.