SUPREME COURT OF THE STATE OF NEW YORK

PRESENT:

- NEW YORK COUNTY

PART I 3

HON. SHEILA ABDUS-SALAAM

Justice

James Couri

INDEX NO.
MOTION DATE

-v -

MOTION SEQ. NO.

109710106
1211I10s
006

Eduardo Zappi, M.D., et al.

MOTION CAL. NO.

The followlng papers, numbered 4 to

Notlce of Motion/ Order to Show Cause

were read on thls motion to

-Affldavlts - Exhiblts ...

Answering Affldavlts - Exhlblts

Replying Affldavlts

Cross-Motion:

Yes

0 No

Upon the foregolng papers, It Is ordered that this motion by defendant Estate of
Robert Berger, M.D. for an order directing the method for payment of the
stipulated settlement amount in this action is granted as Indicated. The crossmotion by plaintiffs for an order, among other things, entering judgment against
defendants, vacatlng the order dated October 30,2008, modifying the settlement
of thls action and vacatlng the restraining notices served by Kenneth V. Gomer,

Esq., is granted only to the extent that this order shall stand in the place and

stead of the October 30,2008 order.

This actlon was settled before the court on September 5,2008. The terms
of the settlement were that defendant Marcello Zappi, M.D. would pay $165,000
and defendant Estate of Robert Berger, M.D. would pay $65,000. On October I,
2008 defendant Bergers Insurance carrier received a restralning notice from

Kenneth Gomer, Esq. with respect to a Judgmententered on April 1, 2007 In favor

of George Pavia and Antonia Pavia against James Cowl In the amount of

$22,259.82 plus interest. Counsel then sought an order from this court directing

payment of the settlement proceeds to the proper parties and by order dated
October 30,2008, the insurance carrier for each defendant was directed to pay
$13,420.59 to Kenneth Gomez, Esq. as attorney for the Pavias, and to pay the

balance of the settlement proceeds to plaintiffs and their counsel upon receipt of
a general release and hold harmless agreement signed by plaintiffs. The order
further provided that if Mr. Gomez did not receive payment within 45 days, the
order would not be bindlng on the Pavlas and the SherifPs levy served in
connection wlth the Pavia Judgmentwould remain in full force and effect.

Mr. Gomez did not receive payment.

Subsequent to the Issuance of the October 30,2008 order, the settling
defendants received a restraining notice from Mr. Gomez wlth respect to a
judgment entered on December 21,1994 in favor of the Carlton House, Inc.,
against James Couri in the amount of $57,817.50 plus Interest. Defense counsel
now seek an order from this court directing how the stipulated settlement should

be paid.
Regarding plaintiffs cross-motion, Mr. Couris position that his wife, andlor

a Trust have rights to the settlement proceeds that are superior to the rlghts of
the judgment creditors is not established by his papers. Nor have plaintiffs

shown that the settlement should be modlfled or the restraining notices vacated.

Accordlngly, the motion is granted as follows:

The insurance carrier for defendant The Estate of Robert Berger, M.D. is
directed to pay the attorneys fees of Michael Steven Smith, Esq. for the total
settlement amount of $230,000, whlch is $61,000 as indicated in the Mondora

affirmation dated December 9,2008; and then pay the remalnder of the settlement
to plaintiffs.
The insurance carrier for defendant Zappi is directed to pay the Pavia
judgment in the amount of $25,273.1 1 plus interest to Kenneth Gomez, Esq.; pay
the Sheriffs Levy; pay the Carlton House judgment In the amount of $57,817.50
plus interest to Kenneth Gomez, Esq., and pay the remalnder of the settlement to
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plaintiffs.
The motion Is granted as indicated.
\

Dated: 4S?bQ

L
J.S.C.

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REFERENCE