The following e-filed documents for Motion Sequence 14 listed by NYSCEF document numbers “256″, “257″, “268″, “269″, “270″, “275″ and exhibits attached thereto have been read on this motion: Order to Show Cause and Affidavits/Affirmations X Affirmation in Opposition X Reply Affidavit/Affirmation X Defendant Diana Kontonotas, D.O. (“Dr. Kontonotas”) moves this Court, pursuant to CPLR §2201 for an order staying the enforcement of the judgment of this Court, entered May 4, 2022 (“Judgment”), pending a hearing and determination of the appeals pending before the Appellate Division, Second Department, from the order of the Honorable Roy S. Mahon, dated August 10, 2020 (“August Order”), from the Judgment and the order of this Court, entered on October 26, 2022 (“October Order”), and pursuant to CPLR §2601, directing the Clerk of the Court to accept the deposit of money in the amount of the judgment to discharge them of any further obligation relative to the amount so deposited. The plaintiff opposes the motion. This action arises out of the defendants’ alleged failure to diagnose and treat the plaintiff for a cerebellar stroke. Specifically, the plaintiff alleged that Dr. Kontonotas deviated from accepted medical practice when Dr. Kontonotas failed to order a neurological consult when the plaintiff presented for treatment in the Emergency Department at defendant South Nassau Communities Hospital on September 26, 2012 and discharged the plaintiff on the same day. A jury trial was held on March 23, 2022, March 24, 2022, March 25, 2022, March 28, 2022, March 29, 2022, March 30, 2022, April 1, 2022, April 4, 2022, April 5, 2022, April 6, 2022, and April 7, 2022, and a verdict was rendered on April 8, 2022. The jury found for the plaintiff in that Dr. Kontonotas deviated from the standard of care in failing to order a neurological consultation but did not deviate from the standard in failing to admit the plaintiff to the hospital on September 26, 2012. With respect to the plaintiff’s damages, the jury awarded the plaintiff $730,000.00 for past lost earnings, $320,000.00 for future lost earnings, $800,000.00 for past pain and suffering, and $700,000.00 for future pain and suffering for the next fourteen years. On May 4, 2022, the Judgment was entered in the total amount $1,913,685.83, which reflects a set off in the amount of $650,000.00 from the plaintiff’s settlement with prior defendants, Dr. Sydney S. Yoon and Radisphere Radiology Group, P.C. (collectively, “Dr. Yoon”). Dr. Kontonotas argues that the appeals pending on the August Order and the October Order could take several months to years before they are resolved and could result in dismissal of the plaintiff’s claims against Dr. Kontonotas and, ultimately, the Judgment. In addition, Dr. Kontonotas asserts that she is being prejudiced by the daily accrual of interest on the amount due under the Judgment while the appeals are pending. Based on this, Dr. Kontonotas asserts that the Court should stay the enforcement of the Judgment and grant Dr. Kontonotas leave to deposit the amount due under the Judgment with the Court in order to stop the accrual of daily interest while Dr. Kontonotas pursues her right to appeal the August Order, October Order and Judgment. “Monies paid into court are subject to the direction of the court.” (R&L Well Drilling v. Zackman, 2019 N.Y. Misc. LEXIS 9264, at *28, citing Mills v. Bluestein, 275 NY 317). CPLR §2601(a) provides that “[a] party paying money into court pursuant to the direction of the court is discharged thereby from all further liability to the extent of the money so paid in.” Moreover, the plain language of the statute provides that a party is “discharged from all further liability to the extent of the money so paid in (CPLR 2601[a]), and such disposition does not…affect defendant’s liability for payment of any further amounts which may be assessed as costs.” (Cepeda v. Hertz Corp., 183 AD2d 614, 615). It has also been held that a defendant forfeits its claim to the monies deposited as “the deposit of funds into court constitute[s] the payment of a judgment, and therefore title passe[s] to the plaintiffs, with the property being held for their benefit by the court.” (Friar v. Vanguard Holding Corp., 125 AD2d 444, 445). Dr. Kontonotas’ arguments in support are unavailing. Dr. Kontonotas’ moving papers make clear that she is not forfeiting title to the money due under the Judgment if it is deposited with the Clerk of the Court. (Friar, 125 AD2d at 445). Rather, Dr. Kontonotas intends to stop the accrual of interest and, should Dr. Kontonotas prevail on her appeals, Dr. Kontonotas would seek to have the deposited money returned. However, as argued by the plaintiff in opposition, the purpose of CPLR §2601(a) is to enable a defendant or its insurer from incurring interest by tendering payment in satisfaction of their obligation, “with no expectation for a return of the deposited money.” Dr. Kontonotas’ contention that she would be entitled to receive the deposited funds back is misplaced as title would pass to the plaintiff once the deposit was made. (Id.). Therefore, in the Court’s discretion, the money due under the Judgment should not be deposited with the Clerk of the Court for the sole purpose of stopping the accrual of interest as it would be contrary to the purpose of CPLR §2601(a). (R&L Well Drilling, 2019 N.Y. Misc. LEXIS 9264, at *28). Turning to Dr. Kontonotas’ application to stay the enforcement of the Judgment, CPLR §2201 provides that “[e]xcept where otherwise prescribed by law, the court in which an action [or proceeding] is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” (Schwartz v. NY City Hous. Auth., 219 AD2d 47, 48). The Court is not persuaded by Dr. Kontonotas’ argument that the enforcement of the Judgment should be stayed while her appeals are pending. The record before the Court provides that a trial in this matter was held, a verdict was reached on April 8, 2022, and all post-trial motions have been decided by this Court. Considering there no proceeding pending before this Court, the matter is concluded, and a stay issued by this Court to enforce the Judgment is not warranted pursuant to CPLR §2201. (Id.). In any event, the Court is not convinced that Dr. Kontonotas would be entitled to a stay of the Judgment even if, as argued by the plaintiff, Dr. Kontonotas more aptly brought the instant application pursuant to CPLR §5519(g), which governs appeals with respect to medical malpractice judgments. According to CPLR §5519(g), if an appeal is take from a judgment in excess of one million dollars, as is the case here, a Court may stay the enforcement of said judgment if the appellant posts an undertaking jointly with the appellant’s liability insurer in the amount of one million dollars or the limit of insurance coverage available to the appellant for the occurrence, agrees not to make any voidable transactions, and demonstrates that the there is a reasonable probability that the judgment may be reversed or determined excessive. Dr. Kontonotas’ moving papers asserts that any attempt to enforce the judgment should be preluded and enforcement of the judgment stayed pending resolution of Dr. Kontonotas’ appeals. Notably, Dr. Kontonotas does not address or demonstrate that an undertaking has been posted jointly with her insurer. (Id). Therefore, stay of the Judgment is not appropriate under these circumstances. Upon the foregoing, it is hereby ORDERED, that the defendant’s motion (Motion Sequence 14) for an order staying the enforcement of the judgment of this Court, entered May 4, 2022, pending a hearing and determination of the appeals pending before the Appellate Division, Second Department, from the order of the Honorable Roy S. Mahon, dated August 10, 2020, from the Judgment and the order of this Court, entered on October 26, 2022, and pursuant to CPLR §2601, directing the Clerk of the Court to accept the deposit of money in the amount of the judgment to discharge them of any further obligation relative to the amount so deposited is denied. The foregoing constitutes the Order of this Court. Dated: June 13, 2023
