Case 1:11-cv-07291-RWS Document 15 Filed 07/10/13 Page 1 of 9
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SOPHIA ELLIOT and I.E.,
CITY OF NEW YORK, et al.,
A P PEA RAN C E S:
LAW OFFICE OF DAVID A. ZELMAN
225 Broadway, 38th
New York, New York 10007
By: David A. Zelman, Esq.
NEW YORK CITY LAW DEPARTMENT
100 Church Street
New York, New York 10007
By: Andrew P. Wenzel, Esq.
11 Civ. 7291
Case 1:11-cv-07291-RWS Document 15 Filed 07/10/13 Page 2 of 9
Plaintiffs Sophia Elliot ("Elliot") and I.E., an
infant, (collectively, "Plaintiffs") have moved for an order
awarding them interest on the settlement amounts that defendants
New York, Police Of cer FNU Figueroa, Police
Jane Doe and Police Of cer John Doe (collectively,
"Defendants") agreed to pay PIa
iffs pursuant to a stipulation
settlement and order of
Settlement") filed on September 14, 2012. For the reasons
discussed below, Plaintiffs' motion is granted.
Plaintiffs filed a complaint in October 2011 alleging
federal and state law c
arising from an incident in which
Plaintiffs allege they were falsely arrested.
The parties engaged in mediation, and eventually
agreed to resolve the claims of both Plaintiffs. The Defendants
agreed to pay a settlement to I.E. in the amount of $5,000, and
a settlement to Elliot in the amount of $9,000 (collectively,
"Settlement Amounts") in full satisfaction of all of
Plaintiffs' claims, including costs and attorneys'
Case 1:11-cv-07291-RWS Document 15 Filed 07/10/13 Page 3 of 9
stipulation of settlement and 0
of dismissal (the
lement Agreement"), reflecting the terms agreed-upon by the
parties, was executed by all parties and filed by the Court on
September 14, 2012.
On December 18, 2012, counsel for the
tter to the Court stating that as of
neither of the Plaintiffs had rece
their settlements, and
requesting that the Court add interest to the Settlement
Amounts. The Court elected to treat the December 18, 2012
letter as a motion.
Subsequently both plaintiffs received their
settlements; Elliot received
r settlement check for $9,000 on
December 26, 2012, and I.E. received his settlement check
$5,000 on January 17, 2013.
Plaintiffs' motion for an awa
of interest was heard
and marked fully submitted on January 30, 2013.
Case 1:11-cv-07291-RWS Document 15 Filed 07/10/13 Page 4 of 9
C.P.L.R. § S003-a Applies to The Settlement Agreement
C.P.L.R. § 5003-a(b)
("§5003-a") provides that "a
municipality settling an action for damages must pay all sums
due within ninety days after the settling plaintiff tenders a
duly executed release and a stipulation
action." Brown v. Cit of New York No. 09 Civ. 1809 (RJD)
(M DG), 2012 WL 62 84 96, at * 2
( E . D . N . Y. Jan. 30 f 2012).
Second Circuit has not yet rul
icability of §5003-a to a settlement of federal claims, such
Settlement Agreement at issue here. While there have
been two opinions from Courts
strict declining to
apply §5003-a to settlements of federal claims, in both
decision not to apply §5003-a was based upon a
ilure by the moving party to explain the rationale justifying
application of that statute. See Nicaj v. City of New York, No.
. 2382 (LBS), 2009 WL 513941, at *1 (S.D.N.Y. Feb. 26,
2009); Green v. Ci
of New York, No. 97 Civ. 8191 (JSR)
2000 U.S. Dist. LEXIS 11691 (S.D.N.Y. Aug. 16, 2000), adopt
Civ. 8191, Dkt. No. 48 (S.D.N.Y. Sept. IS, 2000), at *4 n. 1.
In contrast, the plaintif
here have advanced a substantive
r application of §5003-a, echoing the rationale set
Case 1:11-cv-07291-RWS Document 15 Filed 07/10/13 Page 5 of 9
rth in Brown v. Cit of New York No. 09 C
(MDG), 2012 WL 628496 (E.D.N.Y. Jan. 30, 2012).
court noted that although
t "has not
on whether, and to what
extent, state-law principles apply to a
interpretation of settlement agreements resolving
. a number of
strict court cases examining this question
have concluded that
ral settlements, even
that resolve federal claims, are 'quintessentially
of contractual interpretation and performance and wholly
governed by state law.'"
Id. at *2 (quoting
Inc., No. 10 Civ. 0102 (RJD), 2011 WL 3876978, at *6
(E.D.N.Y. Aug. 31, 2011)) (collecting cases) 1 Brown further
this position is
opinion in Kokkenen v. Guardian
fe Ins. Co., 511 U.S. 375
- - - - - - -
(1994), holding that an action seeking to enforce a settlement
agreement that had been so-o
red by a federal court is, in
essence, "a claim for breach of contract, part of the
consideration for wh
was dismissal of an earlier federal
which as mentioned above declined to apply §5003-a
ence of an argued basis upon wh
to do so,
interpretation of a settlement agreement." 2009 WL 513941, at
"general principles of contract law govern .
Case 1:11-cv-07291-RWS Document 15 Filed 07/10/13 Page 6 of 9
. at 381, and that absent an agreement by the parties
to the contrary, "enforcement of the settlement agreement is for
state courts, unless there is some independent basis for federal
. at 382. Moreover, Brown noted that "t
has suggested that even if fede
applies to a case, New York law would ult
questions regarding a settlement because 'fe
ral common law .
. generally adopts
relevant state law rule unless
re is a
signi cant conflict between the state rule and a federal
interest," 2012 WL 628496, at *3, and that it found "no federal
interest that is stifled by application of §5003 a."
Given the foregoing, it is evident that "whether state
contractual nature of a settlement
agreement or whether it is adopted by fede
clear that New York law governs plaintiffs' motion." Brown,
2012 WL 628496, at *3.
Plaintiffs Are Entitled To Interest and Attorneys' Fees
The prompt-payment provision of §5003-a is a default
rule, subject to modification only upon the express agreement of
the parties to the settlement agreement. See Cunha v. Shapiro,
160, 166 (N.Y. App. Div. 2007); N.Y. C.P.L.R. §
Case 1:11-cv-07291-RWS Document 15 Filed 07/10/13 Page 7 of 9
5003-a, 2007 Supp. Prac. Commentaries (noting that parties "can
provide, for example, that CPLR 5003-a shall not be
lement Agreement here does not contain
any provision waiving application of §5003-a, so the statute's
prompt-payment provision applies to the Agreement.
Under §5003-a, the Defendants were requi
to pay all
sums due to Plaintiffs "within ninety days of tender" of the
Settlement Agreement, meaning that
this case payment was
required to have been made by December 17, 2012. 2
With respect to calculating when a plaintiff is deemed
to have been paid the settlement amount, "New York courts have
Id that payment occurs upon mailing, not receipt, of the
settlement proceedings." Brown, 2012 WL 628496, at *5.
parties' submissions state that
aintiff Elliot received her
settlement check on December 26, 2012, and plaintiff I.E.
received his settlement check on January 17, 2013, but do not
, No. 10. Civ. 7854
2 Because plaintiff I.E. is an infant,
approve the terms of the settlement, e.g., Sanchez v. MTV
(TPG), 2012 WL 2094047, at *1
(S.D.N.Y. June 11, 2012), and thus the "tender" of
settlement agreement for
003-a purposes occurred on the date
that the fully executed and so-ordered Agreement was filed and
appeared on the case docket, which was on September 17, 2012.
The first weekday after the ninetieth day following that date is
December 17, 2012.
Case 1:11-cv-07291-RWS Document 15 Filed 07/10/13 Page 8 of 9
clari whether those checks were received by hand or by mail,
so the latter will be assumed. Accordingly, Defendants are
deemed to have made payment three business days prior to the
dates upon which
liot and I.E. received their settlement
ks, i.e., on December 20, 2012 and January 14, 2013,
Since Defendants fai
to make payment to Plaintiffs
within the 90 days allotted by §5003-a,
aintiffs are entitled
for the amount set forth in the release
and interest on the amount set forth
Agreement] from the date that the [Settlement Agreement] was
tendered. a C.P.L.R. § 5003-a(e). Applying the statutory
interest rate of 9% mandat
by New York law, see N.Y. C.P.L.R.
§ 5004, the interest due to
intiff Elliot is $208.60, and the
interest due to plaintiff I.E. is $146.71.
Case 1:11-cv-07291-RWS Document 15 Filed 07/10/13 Page 9 of 9
For the reasons set forth above, PI
iffs' motion lS
Submit judgment on notice.
It is so ordered.
New York, NY
July 1 ' 2013