### Moctezuma v New York City Tr. Auth. 2024 NY Slip Op 33226(U) September 16, 2024 Supreme Court, New York County Docket Number: Index No. 152659/2014 Judge: Richard Tsai Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 144 INDEX NO. 152659/2014 RECEIVED NYSCEF: 09/16/2024


### SUPREME COURT OF THE STATE OF NEWYORK NEWYORK COUNTY
PRESENT: HON. RICHARD TSAI Justice

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JESUS MOCTEZUMA, Plaintiff,

- V
- NEW YORK CITYTRANSITAUTHORITY, MANHATTAN AND BRONX SURFACE TRANSITAUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, NYEMA RIVERA, JOEL GENAO and STEPHANIE MELO, Defendants.

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INDEX NO. 152659/2014
MOTION DATE 02/01/2024
MOTION SEQ. NO. 006

DECISION + ORDER ON MOTION 21

The following e-filed documents, listed by NYSCEF document numbers (Motion 006) 11, 29, 103, 119, 121-139 were read on this motion to/for RESTORE This personal injury action was tried before ajuryto verdict, and verdict was entered in plaintiff's favor against defendants NewYork City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, and Nyema Rivera (collectively, the NYCTA Defendants). Judgmentwas entered on December29, 2020 in the total amount of$1,806,737.83. Pursuant CPLR 5043 (a) and CPLR 5044, plaintiffseeks an order accelerating the payment ofthejudgment in full. The NYCTA Defendants oppose the motion. 

### BACKGROUND This personal injury action was tried before ajuryto verdict in January and February 2019, which awarded plaintiffthe sum of$1,766.800.00 (see NYSCEF Doc. No. 103, extract). On December 9, 2020, a structured judgmentwas entered in plaintiff's favor in the total amount of$1,806,737.83 (see plaintiff's exhibit A, counter judgment [NYSCEF Doc. No. 123]). Thereafter, the NYCTA Defendants appealed the order ofthe trial court "which denied, in part, the motion ofthe NYCTA defendants to modify orset aside thejury award", which was unanimously affirmed on appeal, Moctezuma v New York City TransitAuthority(222 AD3d 489 [1st Dept 2023]; see also plaintiff's exhibit B [NYSCEF Doc. No. 123]).

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It is undisputed that, on December22, 2023, the NYCTA Defendants were served via NYSCEF with notice ofentry ofthe Appellate Division, First Department's decision ofaffirmance (see plaintiff's Exhibit C in support of motion [NYSCEF Doc. NO. 125]; see also NYSCEF Doc. No. 119). It is also undisputed, that within thirty days ofbeing served with notice ofentry of the affirmance, the NYCTA Defendants did not "post security in amount necessaryto secure payment for the amount ofthejudgment forfuture periodic installments," pursuant to CPLR 5043 (a). The parties do not dispute that NYCTA Defendants' "structured settlement broker," Colin Finn, contacted plaintiff's counsel around the time that NYCTA Defendants' were served with notice ofentry ofthe appellate affirmance, and that Finn was put in contactwith plaintiff's structured settlement consultant, Martin Jacobson of Creative Capital, Inc., around that time (see affidavit ofColin Finn [NYSCEF Doc. No. 129]; affirmation of Martin Jacobson [NYSCEF Doc. No. 134]). In sum, Finn asserts that, on January 5, 2024, he proposed a "a $1.5 million structured settlement offer" ofthe case to Jacobson, and that, on several occasions of him following up on the proposal, he was told "Plaintiff's counsel was unavailable to either accept or reject the offer because he was on the trial" (Finn affidavit

# ,m 3-7). Finn asserts that it was not until February 1, 2024 that he was advised by Jacobson "that the $1.5 million offerwas rejected", at which point the thirty days to post security had expired 

### (id. ,i 8). In contrast, Jacobson contends that he nevertold Finn that he was authorized to negotiate a settlement on behalfof plaintiff, and that he made clearto Finn that "[i]n orderto discuss settlementwe have to be on the same page regarding the TA's cost to fund thejudgment" (Jacobson affidavit, exhibit D [NYSCEF Doc. No. 138], December 27, 2023). Jacobson points out thatwhen he emailed Finn on December28, 2023- stating that he had "just left you a voicemail after speaking with plaintiff's counsel about a potential settlement" and asking that Finn call him back-he stated, "Reminder- the clock is ticking" (Jacobson affirmation, exhibitA [NYSCEF Doc. No. 135], December 28, 2023). Jacobson contends that, even though he was never authorized to provide any extension ofthe deadline to fund thejudgment, his use ofthe phrase "the clock is ticking" makes clear "that no such stay or extension ofthejudgment debtor's time to pay the immediate cash portion ofthejudgment or to post security in the form ofan annuity was ever provided or intended" (Jacobson affirmation 

### ,i 8). Further, Jacobson points outthat, on January 16, 2024, his colleague Rhys Andersen emailed Finn stating clearly, "We haven't been authorized to make any counter yet but ifthat changes, Iwill you know" (Jacobson affirmation 

### ,i 9, quoting exhibit A to Finn Affidavit [NYSCEF Doc. No. 130] at 8-9 of 18). According to counsel for the NYCTA defendants, after she was advised by Finn that plaintiffwas rejecting the settlement offer on February 1, 2024, it was her intent to

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submit another "settlement proposal" to plaintiff (Ayala affirmation in opposition to motion [NYSCEF Doc. No. 128] 

### ,i 19). However, Ayala contends that instead, "on the afternoon of February 1, 2024, the instant motion was received" (id.). Ayala asserts that she spoke to plaintiff's attorney Patrick Bisogno on February 13, 2024, and advised "advised him that that the annuity company required 'proofofage' in orderforthe annuityto be set up" (id. 

### ,i20). Ayala contends that Bisogno "flatly refused to provide the same given this pending motion" (id.). DISCUSSION CPLR 5043 (a) provides that a party liable for all or a portion ofajudgment for periodic installments shall "post security in an amount necessaryto secure payment for the amount ofthejudgmentfor future periodic installments within thirty days afterthe date thejudgment is entered." Here, it is undisputed that, in light ofthe NYCTA Defendants' appeal, there was an automatic stay ofthe execution ofthejudgment (see Public Authorities Law§ 1212-a [3]). It is also undisputed that, within thirty days of being served with notice ofentry of the affirmance, the NYCTA Defendants did not post security "in the form ofan annuity contract" (CPLR 5042) "in amount necessaryto secure payment forthe amount ofthe judgmentforfuture periodic installments," pursuantto CPLR 5043 (a). Because the NYCTA Defendants failed to complywith deadline imposed by CPLR 5043 (a), plaintiffargues that plaintiff is entitled to acceleration ofthejudgment in full, with interest on the outstandingjudgment, without any structure/annuity, pursuant to CPLR 5043 (b) and 5044. In opposition, the NYCTA Defendants argue that defendants did not fail to make payment in a timely fashion as per CPLR 5044 because "good faith settlement negotiations [] were occurring during the 30-day period following the receipt ofthe Appellate Division's decision with Notice of Entry" (affirmation of NYCTA Defendants' counsel 

### ,i 21). The NYCTA Defendants' counsel also claimed that plaintiff's counsel refused to provide plaintiff's proof of age, which was requested by the annuity company to set up the annuity. In reply, plaintiff's counsel acknowledges that he spoke to the NYCTA Defendants' counsel "well aftertheir time to fund the annuity expired," and that she told him that "she would like to fund the annuity but she couldn't because they didn't have the plaintiff's date of birth" (reply affirmation of plaintiff's counsel [NYSCEF Doc. No. 132] 

### ,i 8]). However, plaintiff's counsel contends "this to be laughable on every level" because "NYCTA had multiple avenues to access the plaintiff's date of birth", including calling his office before the time to fund thejudgment expired, or reviewing the bill of particulars, the trial transcript or "the vast amount ofmedical records which were provided" (id.). Plaintiff's counsel asserts that the need for plaintiff's date of birth is "charade" and "simply a poor excuse for missing the funding deadline" (id. 

### ,i 9).

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Contrary to plaintiff's argument, plaintiff is not entitled to acceleration ofthe judgment pursuant to CPLR 5043 (b) at this time. CPLR 5043 (b) states: "Ajudgment creditor orsuccessor in interest and any party having rights may move that the court find that security has not been posted and maintained with regard to ajudgment obligation owing to the moving party. Upon so finding, the court shall orderthat security complying with this article be posted within thirty days. Ifsecurity is not posted within that time and subdivision (c) ofthis section does not apply, the court shall enter a judgment forthe lump sum as such sum is determinable underthe law without regard to this article." "Under CPLR 5033(b) and CPLR 5043(b), ifqualifying security is not timely posted at the outset, the court shall orderthat the obligor complywithin 30 days" (Mark C. Dillon, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C5033:2). It is only afterthejudgment debtorviolates this order ofthe court that "the court shall enter a judgment forthe lump sum as such sum is determinable underthe lawwithout regard to this article" (id.). Because there is no prior court orderwhich directed the NYCTA Defendants to post securitywithin 30 days after it has failed to do so, this court cannot enterjudgment for the lump sum pursuant to CPLR 5043 (b). Scannapieco v CityofNew York (298 AD2d 81 [2d Dept 2002]), which plaintiffcites, did not involve an interpretation ofCPLR 5043 (b). CPLR 5044 states, "Ifat anytime following entry ofjudgment, ajudgment debtorfails for any reason to make a payment in a timely fashion according to the terms of this article, thejudgment creditor may petition the court which rendered the originaljudgment for an order requiring payment by thejudgment debtor ofthe outstanding payments in a lump sum." Unlike CPLR 5043, "the statute provides no specific time frame forthe tender ofthe initial lump sum payment due under a structured judgment. Thus, whetherthat payment is made 'in a timely fashion' will depend on the circumstances presented in the particular case" (Summerville v CityofNew York, 97 NY2d 427, 435 [2002]). Here, the court is not persuaded that, by refusing to provide plaintiff's date of birth, plaintiff's counsel thwarted the NYCTA Defendants' abilityto enter into the required annuity contract by refusing to provide plaintiff's date of birth. As plaintiff's counsel points out, defendants certainly had a wealth ofdocuments that contained

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plaintiff's date ofbirth including plaintiff's bill ofparticulars (see NYSCEF Doc. No. 11 

### ,i 1 [b] [providing plaintiff's date ofbirth]) and plaintiff's deposition testimony (NYSCEF Doc. No. 29 at 6, lines 13-14 [stating that plaintiffwas born in 1977]). Moreover, even if NYCTA Defendantswere unable to find plaintiff's date ofbirth on their own, NYCTA Defendants could have obtained that information from defendant's counsel by simply asking for it before the time to post security expired. And yet, plaintiff has not demonstrated that the NYCTA Defendantsfailed to make payment "in atimely fashion," because the record indicates that there is an open offerto settle thejudgment, which plaintiffdid not reject until after 30 daysfrom service ofthe Appellate Division's decision with notice ofentrywas served. According to Finn, the offerwas made on January 5, 2024, with a follow up on January 10, 204, but Finn was told that plaintiff's counsel was on trial (Finn aff

### ,i,i4-5). According to Finn, Plaintiff's counsel rejected the offer on February 1, 2024 

### (id. 

### ,i8). Ifas plaintiff's counsel asserts, the offerwas clearly a non-starter, plaintiff's counsel should have promptly rejected the offer. Notwithstanding the above, given that the NYCTA Defendants clearly did not complywith CPLR 5043 (a), this court shall orderthat the NYCTA Defendants post the security complying with this CPLR 5043 (a) within thirty days. CONCLUSION It is hereby ORDERED that plaintiff's motion to accelerate payment in full ofthe judgmentwith all costs and interest is DENIED; and it is further ORDERED that defendants NewYork City TransitAuthority, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, and Nyema Rivera shall post the security complying with this CPLR 5043 (a) within thirty days ofentry ofthis decision and order.

9/16/2024

DATE CHECKONE:

APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

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# ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARYAPPOINTMENT

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