Home Insurance v. Accident & Casualty Insurance of Winterthur Switzerland

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered April 27, 2005, which denied plaintiffs motion to enforce its settlement agreement with defendant Accident and Casualty Insurance Company of Winterthur Switzerland, unanimously affirmed, with costs. While there is no question as to plaintiffs right to recover from Winterthur the amount stated in the plain language of the settlement agreement, and indeed defendant does not deny plaintiffs right to recover such amount, final execution of the agreement should await a determination of Winterthur’s claimed setoffs in plaintiffs liquidation (see generally Lyons v Cates Consulting Analysts, 88 AD2d 526 [1982], affd 64 NY2d 1025 [1985]), at which time plaintiffs recovery might be in the form of a credit for the amount in the agreement. As the motion court held, the waiver against setoffs contained in the settlement agreement was limited to setoffs “arising out of or in con 349 nection with or in relation to the Faculatative Certificate and the Additional Faculatative Certificates with respect to the AT&T Settlement Agreement,” which are not the setoffs which defendant asserts. Although Winterthur did not plead such setoffs in its answer, such lapse is excusable under the circumstances of this case where the liquidation order giving rise to the need to claim such setoffs was not rendered until after the filing of the note of issue in this action. Concur—Buckley, P.J., Friedman, Marlow, Sullivan and Malone, JJ.