Tencza v St. Elizabeth Med. Ctr.
2011 NY Slip Op 06776 [87 AD3d 1375]
September 30, 2011
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 9, 2011


John Tencza, Respondent, v St. Elizabeth Medical Center, Appellant.

[*1] 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 [2010]). Present—Scudder, P.J., Smith, Lindley, Sconiers and Gorski, JJ.