TENCZA, JOHN v. ST. ELIZABETH MEDICAL CENTER

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

1006 CA 11-00388 PRESENT: SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ.

JOHN TENCZA, PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

ST. ELIZABETH MEDICAL CENTER, DEFENDANT-APPELLANT.

GALE & DANCKS, LLC, SYRACUSE (CATHERINE A. GALE OF COUNSEL), FOR DEFENDANT-APPELLANT.

BRINDISI, MURAD, BRINDISI, PEARLMAN, JULIAN & PERTZ, LLP, UTICA (STEPHANIE A. PALMER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Oneida County (Bernadette T. Clark, J.), entered July 6, 2010 in a medical malpractice action. The order, inter alia, directed defendant to pay plaintiff costs, disbursements and interest on a judgment.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order in this medical malpractice action that, inter alia, denied its motion seeking to vacate a judgment entered in plaintiff’s favor pursuant to CPLR 5003-a and ordered defendant to pay costs, disbursements and interest on that judgment. We affirm. Contrary to defendant’s contention, plaintiff satisfied his obligation pursuant to CPLR 5003-a by tendering a general release and stipulation of discontinuance to defendant’s attorney. The general release acknowledged the existence of a Medicare lien and provided “that a portion of the settlement will be paid to Medicare for [the] purpose[] of satisfying that lien.” The parties thereafter agreed that defendant was permitted to withhold only $50,000 of the settlement to satisfy the Medicare lien. “Neither CPLR 5003-a, nor the parties’ stipulation of settlement, imposed any additional requirement on the plaintiff or his attorney” (Klee v Americas Best Bottling Co., Inc., 76 AD3d 544, 546).

Entered: September 30, 2011 Patricia L. Morgan Clerk of the Court