New York Cardiothoracic Surgeons, P.C. v. Brevetti

New York Cardiothoracic Surgeons, P.C. v Brevetti 2024 NY Slip Op 31958(U) June 4, 2024 Supreme Court, Kings County Docket Number: Index No. 9567/2003 Judge: Francois A. Rivera 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.

FILED: KINGS COUNTY CLERK 06/05/2024 09:25 AM INDEX NO. 9567/2003 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/05/2024

At an IAS Tenn, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 4th day of June 2024

HONORABLE FRANCOIS A. RIVERA -----------------------------------------------------------------------X NEW YORK CARDIOTHORACIC SURGEONS, P.C., DECISION AND ORDER

Plaintiff, Index No.: 9567/2003

- against -

GREGORY R. BREVETTI, M.D.,

Defendant. ------------------------------------------------------------------------X G_REGORY R. BREVETTI, M.D.,

Third-Party Plaintiff

- agairtst-

ISRAEL J. JACOBOWITZ arid ISRAEL J. JACOBOWITZ., M.D., P.C.,

Third-Party Defendants --------------------------------------------------------------------------X Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross-motion filed on February 15, 2024, under motion_ sequence number fifteen · ·by third-party defendant Israel J. Jacobowitz (hereinafter "Jacobowitz" or "the rriovant") for an order releasing, discharging, and exonerating a certain appeal bond. The motion is opposed.

-Notice of cross-motion -Affirmation in support by the movant

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FILED: KINGS COUNTY CLERK 06/05/2024 09:25 AM INDEX NO. 9567/2003 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/05/2024

Exhibits A-I -Affinnation in opposition by Gregory R. Brevetti Exhibits A-F -Affidavit in opposition Exhibits A-D -Affirmation in support by the nonparty surety Exhibits A-I -Memorandum of law in support by the nonparty surety -Affirmation in opposition by Gregory R. Brevett

BACKGROUND

By the instant motion defendant Jacobowitz seeks, among other things, to

exonerate an appeal bond 3460237 (hereinafter the appeal bond) issued by SureTec

Insurance Company (hereinafter SureTec) on or about May 23, 2019, and filed with the

Court on May 24, 2019.

In 2018, this Court issued various decisions and orders, followed up by a judgment

in April 2019 (hereinafter the 2019 judgment). The 2019 judgment was against both

New York Cardiothoracic Surgeons, P.C. (hereinafter NYCS) and Jacobowitz for breach

of contract and violation of New York Labor Law§§ 190-199 in the amount of

$45,415.66 for lost wages, plus $91,666.64 for severance pay, for a total of $139,997.30,

plus $199,438.83 in interest from January 22, 2003. The 2019 judgment was also against

NYCS for non-payment of disability insurance premium in the amount of $2,895.00, plus

$4212.22 in interest for a total of $7107 .22 and against NYCS and Jacobowitz for

$163,955.00 in attorneys' fees. [* 2] 2 of 6

FILED: KINGS COUNTY CLERK 06/05/2024 09:25 AM INDEX NO. 9567/2003 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/05/2024

Jacobowitz appealed the 2019 judgment. To stay its enforcement while the appeal

was pending, Jacobowitz obtained the appeal bond and filed it with the Court on May 24,

2019.

The Appellate Division, Second Department issued a written decision on

September 21, 2022 (hereinafter Appellate decision), which, inter alia, ordered

modific~tion of the 2019 judgment in various respects. The Appellate decision ruled,

inter alia, that (a) the 2019 judgment against Jacobowitz under the New York Labor Law

relating to severance pay and interest thereon must be deleted; and (b) that portion of the

award explicitly for unpaid disability insurance must be deleted as duplicative.

As a result of the Appellate decision and this Court's subsequent decisions with

· respect to motion sequence numbers 11, 12 and 13; the Court issued an amended .

judgment which resulted in a substantially reduce4 award against Jacobowitz. Pursuant

to the amendedjudg91ent, Jacobowitz's liability was set at $378,095.42 plus statutory

post-judgment interest until paid.

There is no dispute that Jacobowitz has fully satisfied the obligations under the

amended judgment. In so doing, the outstanding liability against NYCS has also bee~

reduced by the same amount.

On February 22, 2024, the Court issued an order directed Jacobowitz to serve by

March 14, 2014, all motion papers related to the instant motion upon.NYCS and SureTec.

NYCS and SureTec were granted until March 29, 2024 to submit responsive papers. [* 3] 3 of 6

FILED: KINGS COUNTY CLERK 06/05/2024 09:25 AM INDEX NO. 9567/2003 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/05/2024

SureTec filed an affirmation in support of the motion witn annexed exhibits and a

memorandum of law.

LAW AND APPLICATION

As relevant to the procedure used here, a stay pending appeal of proceedir:igs to

enforce a judgment directing the payment of a sum of money may be obtained upon

service on the adverse party of a notice of appeal where "an undertaking in that sum is

given that if.the judgment or order appealed from, or any part of it, is affirmed, or the

appeal is dismissed, the appellant or. moving party shall pay the amount directed to be

paid by the judgment or order, or the part of it as to which the judgment or order is

affirmed" (CPLR 5519 [a] [2]).

Thus, an appeal bond issued by a surety meeting the requirements of CPLR 5519

(a) (2) will effect an automatic stay of enforcement of the judgment pending appeal

thereof (see Agai v Liberty Mut. Agency Corp., 118 AD3d 830, 832 [2d Dept 2014], lv . . denied 24 N. Y .3d 906 [2014 ]). "Surety bonds-like all contracts-are· to be construed in

accordance with their terms" (Walter Concrete Constr. Corp. v Lederle Labs., 99 NY2d

603, 605 [2003]) "under established rules of contract construction" (Matter ofSeneca Ins.

Co. v. People, 40 AD3d 1151, 1153 [3d Dept 2007]). After the meaning of the words

used in an appeal bond have been so ascertained, a surety's "obligation upon its

undertaking is defined solely by the language of the bond" and "cannot be extended by

the court" (Tornatore v Cohen, 185 AD3d 1394 (4th Dept 2020). [* 4] 4 of 6

FILED: KINGS COUNTY CLERK 06/05/2024 09:25 AM INDEX NO. 9567/2003 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/05/2024

The question of whether the terms of a contract, such as that of a surety bond

agreement, are ambiguous is a question of law for the court to determine. The contract

language is to be read in light of common speech and interpreted "according to the

reasonable expectations and purposes of ordinary businesspeople when making ordinary

business contracts" (Heartland Brewery Inc. v Nova Cas. Co., 149 AD3d 522 [1st Dept

2017], quoting DMP Cont. C01p. v Essex Ins. Co., 76 AD3d 844, 846 [1st Dept 2010]).

The text of the appeal bond specifically refers to the 2019 judgment as it relates

solely to Jacobowitz, and it also only refers to the appeal of Jacobowitz, not NYCS, as

follows:

WHEREAS, on or about the 19th day of April 2019 in the above-entitled Court, a Judgment was entered by the County Clerk's Office in favor of Defendant/Third Party Plaintiff, GREGORY R. BREVETTI, M.D., and against the Third-Party Defendant, ISRAEL J. JACOBOWITZ, in the total sum of FIVE HUNDRED THREE THOUSAND THREE HUNDRED NINETY-ONE and 13/100 ($503,391.13) DOLLARS. AND, the said Third-Party Defendant, ISRAEL J. JACOBOWITZ, feeling aggrieved thereby, intends to appeal therefrom to the Supreme Court of the State of New York, Appellate Division, Second Judicial Department.

The appeal bond further stated that SureTec •'undertakes that if the Judgment so

appealed from, or any part of it, is affirmed, or the Appeal is dismissed, the Appellant

shall pay the sum directed to be paid by this Judgment. .. "

In opposition to the motion Brevetti makes the following argument. Both

Jacobowitz and NYCS appealed, jointly filed a notice of appeal, and were represented by

the same counsel throughout the proceedings. Therefore, the appeal bond must cover [* 5] 5 of 6

FILED: KINGS COUNTY CLERK 06/05/2024 09:25 AM INDEX NO. 9567/2003 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/05/2024

NYCS' liability. Brevetti further claims that "principal" and appellant" are not

adequately defined in the appeal bond.

The movant disagrees and points out the· following facts. In the General Indemnity

Agreement (hereinafter GIA) b~tween SureTec and Jacobowitz, the "principal" is

expressly and exclusively identified as "Israel J. Jacobowitz". The GIA is signed. The

Court agrees with the movant's and the surety's contention that the judgment referred to

in the appeal bond was solely the judgment against Jacobowitz and not against NYCS.

The Court finds that there is no ambiguity in the surety agreement regarding the judgment

being bonded; it was solely the judgment against Jacobowitz. Inasmuch as Jacobowitz

has fully satisfied his obligations under the amended judgment, the instant motion for an

order releasing, discharging, and exonerating the subject appeal bond is hereby granted.

CONCLUSION

The cross-motion by third-party defendant IsraelJ. Jacobowitz for an order

releasing, discharging, and exonerating the subject Appeal Bond is granted. Israel J.

Jacobowitz is directed to settle an order on notice consistent with the instant decision and

order on or before July 8, 2024.

J.S.C. HON. FRANCOIS A. RIVERA

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