PLAINTIFF CAN'T ENTER JUDGMENT ON SETTLEMENT UNTIL HE GIVES DEFENSE MEDICARE/MEDICAID INFORMATION; DEFENSE PERMITTED TO PAY SETTLEMENT MONEY INTO COURT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Jamie L. Torres v. Hirsch Park, LLC

Date: Jan. 31, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Kurtz, J.), dated November 16, 2010, as granted that branch of the defendant's cross motion which was pursuant to CPLR 2601 for leave to pay the proceeds of the parties' settlement agreement into court, and to stay the plaintiff from entering judgment pending his compliance with an order of the same court dated July 12, 2010 (Hurkin-Torres, J.), directing him, in effect, to provide the defendant with authorizations to obtain his Medicare and Medicaid records.

ORDERED that the order dated November 16, 2010, is affirmed insofar as appealed from, with costs.

Under the circumstances of this case, the Supreme Court properly granted that branch of the defendant's cross motion which was pursuant to CPLR 2601 for leave to pay the proceeds of the parties' settlement agreement into court, and to stay the plaintiff from entering judgment pending his compliance with a prior order directing him, in effect, to provide the defendant with authorizations to obtain his Medicare and Medicaid records. The general release and stipulation of settlement tendered by the plaintiff to the defendant were defective because they failed to include any provisions releasing and holding the defendant harmless from potential Medicare and Medicaid liens (see Liss v. Brigham Park Coop. Apts. Sec. No. 3, 264 A.D.2d 717, 718, 694 N.Y.S.2d 742; cf. Klee v. Americas Best Bottling Co., Inc., 76 A.D.3d 544, 907 N.Y.S.2d 260), or acknowledging that any such liens would be satisfied from the settlement proceeds (cf. Tencza v. St. Elizabeth Med. Ctr., 87 A.D.3d 1375, 930 N.Y.S.2d 520). Thus, the plaintiff did not satisfy a condition precedent to the entry of judgment pursuant to CPLR 5003-a. Further, the authorizations that the Supreme Court directed the plaintiff to provide are necessary for the defendant to comply with its statutory duty to report the identity of a claimant who is entitled to Medicare benefits (see 42 USC Sec. 1395y[b][8]), and to determine the existence of potential subrogation claims (see Liss v. Brigham Park Coop. Apts. Sec. No. 3, 264 A.D.2d at 718, 694 N.Y.S.2d 742; 42 USC Sec. 1395y[b][2][B][iii]; 42 CFR 411.24[b]; Social Services Law Sec. 367-a[2][b]).

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