Last time we visited my little problem — although I’ve filed a complaint against Dinkes & Schwitzer with the Disciplinary Committee of the New York State court system, I still have not gotten my settlement check, although I signed the settlement agreement on November 3, 2011 — I had sent William Schwitzer a letter telling him a precise date when I expected to receive my check. And how much I expected that check to be for.
The last line in my last post was, “I am sanguine.”
Well, my expectations were partially correct in their sanguinity. On August 24, the day I told Schwitzer I expected to get my check, I got a FedEx mailing from Dinkes & Schwitzer. It did not contain a check but it did contain a letter from William Hamel saying that the law firm accepted my “proposal regarding the dispersal of the settlement funds for [my] personal injury action.”
Good. But where’s the money? Well, Hamel says that the “issuance of the settlement check is not under our control.”
Bad. I guess he hasn’t looked through my file, because one of the last documents in that file is a FedEx-ed letter from a Dinkes paralegal, enclosing all the necessary settlement documentation, to the lawyers for the defendant. That is, the lawyers who do control issuing the check.
But additionally, the paralegal wrote what I’m sure is boilerplate language for such letters: “I call to your attention that, pursuant to Section 5003-a of the Civil Practice Law and Rules of the State of New York, payment of this settlement must be received by us within twenty-one (21) days from the day hereof.” The date of that letter was July 20, 2012; twenty-one (business) days from then would have been August 20.
There are exceptions: if a municipality, i.e., the City of New York, is a defendant who settled — and Dinkes had insisted on naming the City as a defendant in my personal injury case — the municipality has 90 days to deliver a check. But as far as I know (and I should know, shouldn’t I? I mean, I’m the plaintiff!), the City didn’t provide any part of the settlement.
There are penalties if the defendant’s lawyers don’t comply, but I’m sure they did comply. They are professionals at this, after all. And I’ll bet they’ve been sitting around since November 3, 2011, wondering when they’d receive all the settlement documents.
I gave Dinkes until August 24 to get me my check because I was giving Dinkes a few days from August 20 to deposit the check and have it cleared.
So Hamel’s letter is misleading, if you want to put it that way. In effect, it’s patently untrue: Dinkes may not “control” the “issuance” of the settlement check, but the CPLR certainly does. I guess when Hamel didn’t bother to read that letter in my file, he also didn’t bother to realize that even if I hadn’t been aware of the CPLR initially, I certainly was now.
And since today is August 29, I’m sure that check has arrived and has cleared.
Should I waste any more time writing to Schwitzer, demanding my settlement? Or should I just send an urgent addendum to the Disciplinary Committee, copying everyone?