Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Korsunskiy Legal Group, P.C. (Henry Guindi, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 21, 2015. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff no-fault statutory prejudgment interest from January 8, 2007.

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on January 8, 2007. After a nonjury trial held on November 3, 2014, the Civil Court found in favor of plaintiff and awarded it the principal sum of $1,131.68. Defendant made an oral application to the court to toll the accrual of no-fault statutory prejudgement interest based upon plaintiff’s delay in the prosecution of the action. In the alternative, defendant sought to submit a posttrial brief on the tolling issue. The Civil Court denied defendant’s requests, and a judgment was entered on May 21, 2015 awarding plaintiff the principal sum of $1,131.68 and, among other things, no-fault statutory prejudgment interest from January 8, 2007. As limited by its brief, defendant appeals from so much of the judgment as awarded plaintiff no-fault statutory prejudgment interest from January 8, 2007.

No-fault statutory prejudgment interest (see Insurance Law § 5106 [a]) begins to accrue when the action is commenced (see 11 NYCRR 65-3.9 [c]), “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65-3.9 [d]). While a significant amount of time elapsed between the commencement of this action and the trial, defendant did not adequately demonstrate to the Civil Court, and there was nothing in the record to indicate, the reason for the protracted delay or that it was plaintiff which had “unreasonably delay[ed]” the action (cf. Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2015]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, as there was no basis for the Civil Court to toll the accrual of no-fault statutory prejudgment interest, the judgment, insofar as appealed from, is affirmed.

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.

67257/10

Counsel for Plaintiff: Leon Kucherovsky, Esq.

Counsel for Defendant: Peter C. Merani, PC

In this action for the payment of first-party benefits – no fault payments for medical treatments – defendant moves seeking an order pursuant to, inter alia, CPLR § 5019(a), modifying this Court’s Judgment, entered November 5, 2015. Saliently, defendant avers that the Judgment should be modified and the amount therein reduced to zero on grounds that defendant’s insured exhausted no-fault the limits of the relevant policy. Plaintiff opposes the instant motion asserting that defendant’s failure to raise the instant defense issue at the time this case was tried – despite being aware of the same – precludes application of the same.

For the reasons that follow hereinafter, defendant’s motion is denied.

The instant action is for the payment of no-fault insurance benefits for medical treatment. The complaint and exhibits appended thereto allege, in relevant part, the following: On September 2, 2009, LESSIE BENJAMIN (Benjamin) sought medical treatment from plaintiff for injuries sustained in a motor vehicle accident occurring on August 4, 2009. Lessie was covered by an insurance policy issued by defendant, which pursuant to Article 51 of the Insurance Law, required payment of health related expenses and whose benefits Lessie assigned to plaintiff. The treatments provided by defendant to Lessie totaled $2,272.66, were covered by defendants’s policy, were billed to defendant, but were nevertheless not paid. Based on the foregoing, plaintiff seeks payment of the aforementioned sums pursuant to the Comprehensive Motor Vehicle Insurance Reparations Act ^[FN1] (11 NYCRR 65-3.1 et seq.).

On May 15, 2015 after a trial, this Court (Franco, J.) issued a decision finding that based on the relevant fee schedule, of the sums sought by plaintiff, it was entitled to $588 plus costs and interest. The Court directed a judgment, and the same was entered on November 5, 2015. [*2]On January 14, 2016, plaintiff executed the judgment upon defendant’s assets.

Defendant’s motion seeking, inter alia, modification of the judgment pursuant to CPLR § 5019(a) – reducing the amount of the judgment to zero on grounds that Lessie has exhausted the relevant policy – is denied. Significantly, as will be discussed below, while defendant’s liability for any medical claims under the no-fault portion of its policy is generally limited to $50,000, here, it is alleged and unrebutted that defendant was aware that it had exhausted its policy prior to the entry of the relevant judgment but failed to raise the issue at trial.

It is well settled that [a]n insurer is not required to pay a claim where the policy limits have been exhausted” (Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]). Stated differently, where an insurer has paid the full monetary limits set forth in the relevant policy, its duties under the contract of insurance cease (id. at 534; Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]; Presbyt. Hosp. in City of New York v Liberty Mut. Ins. Co., 216 AD2d 448, 448 [2d Dept 1995]; Presbyt. Hosp. in the City of New York v Gen. Acc. Ins. Co. of Am., 229 AD2d 479, 480 [2d Dept 1996]).

Indeed, in the context of actions seeking the payment of medical expenses under the no-fault portions of an insurance policy, the foregoing is no less true. Thus, even when a judgment is issued against an insurer requiring it to pay for medical expenses incurred by its insured under the no-fault provisions of its insurance policy, if the insurer has exhausted the amount for which it is liable under the policy, the judgment can generally not be enforced (St. Barnabas Hosp. v Country Wide Ins. Co., 79 AD3d 732, 733 [2d Dept 2010]; Hosp. for Joint Diseases v Hertz Corp., 22 AD3d 724, 725 [2d Dept 2005]; Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245 [1st Dept 2000] [“The arbitrators exceeded their authority in directing the payment of the $2,250 at issue, as the award was in excess of the $50,000 limit of the subject insurance policy. When an insurer has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (internal citation and quotation marks omitted).]; Presbyt. Hosp. in the City of New York, 229 AD2d at 480 [2d Dept 1996]; Presbyt. Hosp. in City of New York, 216 AD2d at 448; Allstate Prop. and Cas. Ins. Co. v Northeast Anesthesia and Pain Mgt., 51 Misc 3d 149(A), *1 [App Term 2016]; Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137(A), *1 [App Term 2015]; Allstate Ins. Co. v Demoura, 30 Misc 3d 145(A), *1 [App Term 2011]). Thus, when an insured establishes that it has exhausted the no-fault limits under its policy because it paid all amounts allowed under the policy to medical providers, it is generally not liable for any other amounts (Hosp. for Joint Diseases at 725 [“The evidence submitted in support of the motion established, among other things, that the defendants’ payments to other health providers and the defendants’ payment of the plaintiff’s initial claim totaled $23,744.21, and that the defendants forwarded to the plaintiff the remaining amount they were obligated to pay under the policy, namely, $26,255.79, which resulted in the $50,000 policy limit being exhausted. The Supreme Court granted the defendants’ motion, finding that the defendants’ payment satisfied the judgment and exhausted the policy limit, and that the information subpoena was rendered academic.”]; Countrywide Ins. Co. at 245;Harmonic Physical Therapy, P.C. at *1).

The foregoing defense, however, may be waived. With regard to when an insured is required to interpose the defense of policy exhaustion to prevent the payment of outstanding claims, the case law appears to be clear. Indeed, the appellate authority on this issue as well as trial court precedent establishes that defendant’s failure to raise the issue – when known – constitutes waiver. In Mount Sinai Hosp. v Dust Tr., Inc. (104 AD3d 823, 825 [2d Dept 2013]), defendant sought to modify a judgment issued against it after plaintiff was granted summary judgment on the issue of whether defendant – an insurer – owed plaintiff – a medical provider – money under a no-fault policy for medical services rendered to defendant’s insured (id. at 824). The court held that insofar as defendant failed to assert that it had exhausted the no-fault limits of its policy in opposition to plaintiff’s motion for summary judgment, only raising it after it sought to modify the judgment, such modification was barred (id. at 825 [“The issue of partial exhaustion of the defendant’s coverage was raised for the first time after the judgment was [*3]entered, even though the plaintiff had previously moved for summary judgment on the complaint, seeking a certain amount of benefits . . . The failure to present such reasonable justification by itself requires denial of the defendant’s motion.”]). Clearly, then, the holding in Mount Sinai Hosp., which deems the defense of policy exhaustion waived when known and not raised in relation to summary judgment also requires waiver when the defense is known prior to trial and not raised. While the appellate courts in the First Department have yet to address this issue, one case in this very Court has decided the issue – on identical facts – in a plaintiff’s favor.

In Big Apple Ortho Medical Supply, Inc. V Allstate Insurance Company (NYLJ 1202756440119, *1 [Civil Ct, Bronx County 2016]), the court declined to modify the judgment issued against an insurer for the payment of no-fault benefits on grounds that the defense of policy exhaustion was raised for the first time in a post judgment motion (id. at *2-3). Significantly, the court there concluded that defendant could have raised the defense at trial but failed to do so (id.). Other trial courts have also declined to modify a judgment requiring the payment of no-fault benefits when the defense is raised after judgment is rendered but could have been raised prior thereto (Ortho Passive Motion Inc. v Allstate Ins. Co. 55 Misc 3d 794, 797 [NY Dist Ct 2017]). In Ortho Passive Motion Inc., the court denied defendant’s post judgment motion to modify and reduce the same to zero on grounds that the exhaustion of the policy’s no-fault limits precluded payment on the judgment (id. at 795). The Court denied the application, concluding that defendant was aware of the fact that it could not satisfy the judgment at the time the case was tried and in failing to raise it, could not be accorded the relief sought (id. at 895).

The dearth of dispositive appellate authority in this department is, of course clear, and any argument to the contrary is unavailing. Indeed, in neither Harmonic Physical Therapy, P.C., (47 Misc 3d 137[A]) nor Demoura (30 Misc 3d 145[A]), did the Appellate Term, First Department have occasion to address the issue at bar – whether failing to raise the defense of policy exhaustion prior to judgment, when the same was known at the time of trial – bars the applicability of the defense. At best, the court in Demoura held that “[a] defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30-day period” (id. at 145). This of course does not avail a defendant since it is one thing to fail to raise a defense prior to the initiation of an action, without having such failure constitute waiver, and quite another to raise the same after a judgment in an action has been issued. Especially when the defendant had prior knowledge that its policy had been exhausted.

Here, in support of its motion defendant submits the policy issued to Lessie, which indicates at Page 12, under the section titled “Limits of Liability” that

[t]he limit of our liability for Medical Expense Benefits as stated on the Policy Declarations, is the maximum we will pay per any one insured person for any motor vehicle accident.

Notably, the policy declarations submitted by defendant fail to indicate the limits of any no-fault benefits under the policy. Defendant also submits a host of documents – checks – indicating that it paid in excess of $50,000 for medical services on behalf of Lessie, its insured. According to the checks, all payments were made prior to 2011.

Based on the foregoing, defendant’s motion must be denied. First, defendant fails to establish that the policy at issue in fact limits no-fault benefits to $50,000. As noted above, the policy declaration documents submitted are bereft of any indication that the policy had a no-fault benefit, let alone the limits thereof.^[FN2]

Notwithstanding the foregoing, defendant’s motion must be denied for a more substantive reason. On this record, the assertion that when this case was tried in 2015, defendant was aware [*4]that its policy had been exhausted and nevertheless failed to raise such defense remains unrebutted. This is fatal.

As discussed above, when a defendant knows it has exhausted its policy and fails to raise it concomitantly with notice of the same, any motion seeking to modify a judgment based on that defense must be denied. (Mount Sinai Hosp. at 825;Ortho Passive Motion Inc. at 895; Big Apple Ortho Medical Supply, Inc. at *2-3). Here, plaintiff asserts that defendant had exhausted its policy prior to the time the case was tried such that defendant should have raised the same during the trial. This assertion remains unrebutted and it is, in fact, borne out by defendant’s own evidence – the checks purporting all payments made on behalf of Lessie – which indicate no payments beyond 2011 – four years prior to trial. Thus, since defendant’s position is that the checks submitted establish exhaustion of the policy, it is bound by the dates therein, which establish exhaustion prior to trial.

Accordingly, the record establishes that defendant knew and could have raised the foregoing defense, nevertheless failed to raise its exhaustion defense at trial or prior thereto; raising it for the first time after judgment was entered and with the instant motion. Defendant is, thus, barred from availing itself of this defense and its motion must be denied (Mount Sinai Hosp. at 825;Ortho Passive Motion Inc. at 895; Big Apple Ortho Medical Supply, Inc. at *2-3).

Defendant’s reliance on Hosp. for Joint Diseases is misplaced and unavailing. While it is true that in that case defendant was allowed to avail itself of the exhaustion defense after a judgment had been entered, the court only so held insofar as “the defendants were not previously afforded a full and fair opportunity to contest that issue” prior to the entry of judgment (id. at 725-726). Here, of course, defendant was aware of its exhaustion defense at the time of trial, could have raised and litigated the same, but did not. Nor does St. Barnabas Hosp., avail defendant. Significantly, while the court in that case did allow the defendant to modify the judgment on grounds of policy exhaustion, it did so by rejecting the plaintiff’s contention on appeal – that defendant was collaterally estopped from raising the defense because such issue was not raised in connection opposition to plaintiff’s motion for summary judgment (id. at 733). Indeed the Court noted that

[c]ontrary to the plaintiff’s contention, since the only issues decided in connection with the motion for summary judgment on its cause of action to recover no-fault medical payments were the questions of whether the defendant had failed to pay or deny the relevant claim within the statutory time frame, and whether the defendant had received verification of that claim, the defendant is not collaterally estopped from seeking to modify the amount of the judgment that was in satisfaction of the plaintiff’s claim, based upon the contention that the policy limits have been partially exhausted (id. at 733.) That court’s holding is, thus, limited to its facts and indeed appropriate since the doctrine of collateral estoppel, a narrower species of the doctrine of res judicata, prevents a party from re-litigating an issue when the issue was previously litigated and decided against the party or his/her privies (Ryan v New York Telephone Company, 62 NY2d 494, 500 [1984]; see Buechel v Bain, 97 NY2d 295, 303-304 [2001]; David v Biondo, 92 NY2d 318, 322 [1998]; Gramartan Home Investors Corp. v Lopez, 46 NY2d 481, 485 [1979]; Lumbermens Mutual Casualty Company v 606 Restaurant, Inc., 31 AD3d 334, 334 [1st Dept 2006]; Zimmerman v Tower Insurance Company of New York, 13 AD3d 137, 139 [1st Dept 2004]; Mulverhill v State of New York, 257 AD2d 735, 737-738 [3d Dept 1999]; Tamily v General Contracting Corporation, 210 AD2d 564, 567 [3d Dept 1994]). In order to invoke the preclusive effects of collateral estoppel it must be demonstrated that the issue being raised is identical to an issue previously litigated and decided, that the issue is decisive in the present action, was also decisive and resolved in the prior action, that the party against whom the doctrine is being asserted had a full and fair opportunity to contest and litigate the issue in the prior action, or that his privies had such an opportunity (Buechel at 303-304; David at 322; Ryan at 500; Gramartan Home Investors Corp. at 485; Lumbermens Mutual Casualty Company at 334; Zimmerman at 139; Mulverhill at 737-738; Tamily at 567; Browing Avenue Realty Corp. v Rubin, 207 AD2d 263, 266 [1st Dept 1994]; [*5]Color by Pergament, Inc. v O’Henry’s Film Works, Inc., 278 AD2d 92, 93 [1st Dept 2000]; Comi v Breslin & Breslin, 257 AD2d 754, 757 [3d Dept 1999]).

Thus, St. Barnabas Hosp., does not stand for the proposition – as urged – that a defendant cannot waive and can, therefore, raise the defense of exhaustion at any time. Rather, in that case, the court merely held that collateral estoppel did not preclude defendant from raising the issue after judgment was entered because the same had not been raised and litigated on plaintiff’s motion for summary judgment; the foregoing being essential elements of collateral estoppel. It is hereby

ORDERED that all stays be hereby lifted. It is further

ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty days (30) hereof.

This constitutes this Court’s decision and Order.

Dated: February 1, 2018

Hon. FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1: 11 NYCRR 65-3.1 states that “[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.”

Footnote 2: Defendant’s failure is not fatal since the Insurance Law mandates that all automobile insurance polices in this state provide no-fault coverage for medical expenses incurred by an occupant in a motor vehicle accident in the sum of $50,000 (see, Insurance Law § 5102[a][1], § 5103[a][1]).

[*1]

Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Daisy Ford Paglia of counsel), for appellant.

Basch & Keegan, Kingston (Derek J. Spada of counsel), for respondent.

Devine, J. Appeal from an order of the Supreme Court (Gilpatric, J.), entered November 16, 2016 in Ulster County, which denied defendant’s motion for summary judgment dismissing the complaint.

After he was injured in a motor vehicle accident, plaintiff commenced this action to recover no-fault benefits for lost wages that he allegedly would have received from a new job that he had been offered but not yet started. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint. This Court reversed, granted the motion and dismissed the complaint (152 AD3d 1145 [2017]). The Court of Appeals reversed, finding “[t]riable issues of fact . . . as to plaintiff’s claim for lost wages,” and remitted the matter so that this Court could address any issue “raised but not determined” on the initial appeal (30 NY3d 1044, 1045 [2017]).

The remaining issue is whether defendant was provided with proper verification of plaintiff’s claim for lost wages. “[A]n insurer must pay or deny only a verified claim” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; see 11 NYCRR 65-3.8 [a] [1]), which ordinarily requires “its receipt of verification of all of the relevant information requested” (11 NYCRR 65-3.8 [b] [3]; see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d at 299). As is relevant here, the insurer must “accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed [*2]form” (11 NYCRR 65-3.5 [f]; see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 162 [2013]). The regulations therefore ensure that the insurer is provided with the necessary information to verify a claim but do not, in most instances, require that the information be provided on a particular form (see 11 NYCRR 65-3.5 [f]).

Defendant complains, and the record indicates, that it did not receive a completed NF-6 form (employer’s wage verification report) from VW Parts, Inc., the intended employer. The principal of VW Parts testified, however, that he did not believe that he ever received an NF-6 form to complete. Counsel for plaintiff confirmed as much in a letter responding to defendant’s demand for the completed form, requesting a copy that he could provide to VW Parts. In any event, counsel for plaintiff had already provided defendant with plaintiff’s employment application to VW Parts and a signed employment offer providing details of the proffered work. To the extent that those documents did not provide all of the information contained on a completed NF-6 form, defendant further connected with the principal of VW Parts “for an interview and verification of employment” that could have been used to obtain the remainder. Thus, inasmuch as triable questions of fact exist as to whether plaintiff’s claim was properly verified, defendant is not entitled to summary judgment dismissing the complaint on that basis.

Egan Jr., Clark and Mulvey, JJ., concur; McCarthy, J.P., not taking part. Ordered that the order is affirmed, without costs.

Freiberg, Peck & Kang, LLP (Yilo J. Kang. Esq.), for appellant. Murray Hill Legal Services, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), dated February 24, 2015. The order, insofar as appealed from, denied defendant’s cross motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion to dismiss the complaint is granted.

Plaintiff commenced this action in 2006 to recover assigned first-party no-fault benefits. Defendant defaulted in answering, and, more than seven years later, plaintiff moved for the entry of a default judgment. Defendant cross-moved to dismiss the complaint as abandoned (see CPLR 3215 [c]). The Civil Court, in effect, denied the motion and cross motion but permitted defendant to submit an answer and directed plaintiff to file a notice of trial. Defendant appeals from so much of the order as denied its cross motion to dismiss the complaint.

A party who fails to initiate a proceeding for the entry of a default judgment within a year of the default must establish a reasonable excuse for the delay and “demonstrate that the complaint is meritorious, failing which the court, . . . on motion, must dismiss the complaint as abandoned” (Valentin Avanessov, M.D., P.C. v Progressive Ins. Co., 31 Misc 3d 139[A], 2011 NY Slip Op 50778[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see Giglio v NTIMP, Inc., 86 AD3d 301 [2011]).

Here, plaintiff failed to establish a reasonable excuse for the delay (see Mattera v Capric, 54 AD3d 827 [2008]). Plaintiff’s counsel asserted only that, in 2006, there was a possible settlement entered into between the parties. This lone assertion, along with a 2006 letter referencing a purported settlement, is insufficient to establish a history of settlement discussions which could possibly excuse the seven-year delay (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783 [2008]). Moreover, plaintiff submitted “neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim” (Eagle Surgical Supply, Inc. v QBE Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51455[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). The complaint, attached to the motion, to which the claim forms at issue were not attached, was signed by an attorney without personal knowledge of the facts of the claims asserted therein (see Solano v Castro, 72 AD3d 932 [2010]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion to dismiss the complaint is granted.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

Law Office of David O’Connor, P.C. (David O’Connor, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered October 15, 2015. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $2,670, awarded plaintiff no-fault statutory prejudment interest in the sum of only $1,082.24.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, and the matter is remitted to the Civil Court for a recalculation of the no-fault statutory prejudgment interest in accordance with this decision and order, and for the entry of an appropriate amended judgment thereafter.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on March 30, 2006. After a motion by plaintiff for summary judgment was denied by an order of the Civil Court entered June 8, 2007, plaintiff moved to compel defendant to appear for an examination before trial and provide responses to the interrogatories served by plaintiff. On December 18, 2007, the Civil Court denied plaintiff’s motion to compel but held that plaintiff could serve a second set of interrogatories within 45 days. On December 27, 2007, in accordance with the December 18, 2007 order, plaintiff served another demand for interrogatories upon defendant. Defendant did not serve a response to the demand for a second set of interrogatories, and plaintiff did not file a notice of trial until May 30, 2013. A nonjury trial was subsequently held, after which the Civil Court found in favor of plaintiff. However, the Civil Court held that plaintiff had [*2]unreasonably delayed the resolution of the case and that, as a result, no-fault statutory prejudgment interest would not accrue between the date the action had been commenced and the date the notice of trial had been filed. Plaintiff appeals from so much of the Civil Court’s judgment as failed to award plaintiff no-fault statutory prejudgment interest from the commencement of the action through January 27, 2008, as January 28, 2008 was the first day plaintiff could have made a motion based upon defendant’s failure to respond to the December 27, 2007 demand for interrogatories.

No-fault statutory prejudgment interest accrues upon overdue first-party no-fault benefits at the rate of two percent per month “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65-3.9 [a], [d]). While the court found that plaintiff was not entitled to the interest which had accrued between the commencement of the action on March 30, 2006 and the date plaintiff filed the notice of trial, May 30, 2013, plaintiff’s argument that the toll upon the accrual of interest should not begin until January 28, 2008, as plaintiff had not unreasonably delayed prosecution of the action prior to that date, is correct. Motions were made and discovery demands were served during the period between the commencement of the action and December 27, 2007, the date plaintiff served its second demand for interrogatories. Consequently, a motion by plaintiff to compel defendant to respond to the demand for interrogatories would have been premature prior to January 28, 2008 (see CPLR 2103 [a]; 3133 [a]; General Construction Law § 25-a). As a result, plaintiff is entitled to no-fault statutory prejudgment interest from the commencement of the action on March 30, 2006 through January 27, 2008.

Accordingly, the judgment, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a recalculation of the interest pursuant to Insurance Law § 5106 (a) to include the no-fault statutory prejudgment interest which accrued from March 30, 2006 through January 27, 2008, and for the entry of an appropriate amended judgment thereafter.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

Decided on January 24, 2018

Decided on January 19, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2016-950 K C

Law Office of Lawrence R. Miles (Thomas Wolf, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 27, 2016, deemed from a judgment of that court entered April 7, 2016 (see CLPR 5501 [c]). The judgment, entered pursuant to the January 27, 2016 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,103.32.

ORDERED that the judgment is reversed, with $30 costs, the order entered January 27, 2016 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks the unpaid balance of two claims for services that plaintiff rendered from May 7, 2014 through July 16, 2014. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff seeks to recover amounts which are in excess of the amounts permitted by the workers’ compensation fee schedule. Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that she possessed personal knowledge of the facts. In an order entered January 27, 2016, the Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground that defendant was precluded from interposing its defense because defendant had failed to timely deny plaintiff’s claims.

As defendant argues, 11 NYCRR 65-3.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, “no payment shall be due for [] claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered [*2]by medical providers.” Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014 (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]).

Accordingly, the judgment is reversed, the order entered January 27, 2016 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

Decided on January 18, 2018

Law Office of Lawrence R. Miles (Thomas Wolf, Esq.), for appellant. Law Offices of Ilona Finkelshteyn (Ilona Finkelshteyn, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered November 13, 2015, deemed from a judgment of that court entered February 16, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 13, 2015 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,322.51.

ORDERED that the judgment is reversed, with $30 costs, the order entered November 13, 2015 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks the unpaid balance of five claims for services plaintiff rendered between December 2013 and April 2014. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff sought to recover amounts which were in excess of the amounts permitted by the workers’ compensation fee schedule. Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that she possessed [*2]personal knowledge of the facts. In an order entered November 13, 2015, the Civil Court held that defendant was precluded from interposing such a defense because defendant had failed to timely deny plaintiff’s claims. As a result, the court granted plaintiff’s motion and denied defendant’s cross motion.

As defendant argues, 11 NYCRR 65-3.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, “no payment shall be due for [] claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.” As the services at issue were provided between December 2013 and April 2014, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]).

Accordingly, the judgment is reversed, the order entered November 13, 2015 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.

Decided on January 12, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS