Reported in New York Official Reports at Compas Med., P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50773(U))
| Compas Med., P.C. v 21st Century Ins. Co. |
| 2018 NY Slip Op 50773(U) [59 Misc 3d 147(A)] |
| Decided on May 25, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 25, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-146 K C
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Maryana Feigen of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 8, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that it had fully paid plaintiff for the services at issue, which had been rendered prior to April 1, 2013, in accordance with the workers’ compensation fee schedule.
Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018
Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v American Tr. Ins. Co. (2018 NY Slip Op 50770(U))
| Gentlecare Ambulatory Anesthesia Servs. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50770(U) [59 Misc 3d 147(A)] |
| Decided on May 25, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 25, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2422 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 28, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s contentions on appeal, defendant established that the examination under oath (EUO) and independent medical examination (IME) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff had failed to appear for the scheduled EUOs and plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018
Reported in New York Official Reports at Remedial Med. Care, P.C. v Park Ins. Co. (2018 NY Slip Op 50769(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Park Insurance Co., Appellant.
Gullo & Associates, LLP (Natalie Socorro of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 17, 2015. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on a bill for services rendered on August 23, 2012 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. The Civil Court denied the motion but held, in effect pursuant to CPLR 3212 (g), that defendant had established the timely mailing of its denials.
With respect to the bill for services rendered on August 23, 2012, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As defendant’s prima facie showing was not rebutted [*2]by plaintiff, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on that claim, the Civil Court should have granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon this claim.
With respect to the remaining bills, plaintiff correctly argues that defendant failed to establish that the initial and follow-up letters scheduling independent medical examinations (IMEs) had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the remainder of the complaint.
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on a bill for services rendered on August 23, 2012 is granted.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018
Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50767(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50767(U) [59 Misc 3d 146(A)] |
| Decided on May 25, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 25, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2202 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Nethanel BenChaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 3, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s arguments, defendant’s proof sufficiently established proper mailing of the EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018
Reported in New York Official Reports at Parisien v Maya Assur. Co. (2018 NY Slip Op 50766(U))
[*1]| Parisien v Maya Assur. Co. |
| 2018 NY Slip Op 50766(U) [59 Misc 3d 146(A)] |
| Decided on May 25, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 25, 2018
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2185 K C
against
Maya Assurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered July 2, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; see also Delta Diagnostic Radiology, P.C. v Maya Assur. Co., 47 Misc 3d 151[A], 2015 NY Slip [*2]Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018Forest Park Acupuncture, P.C. v MVAIC (2018 NY Slip Op 50768(U))
Reported in New York Official Reports at Forest Park Acupuncture, P.C. v MVAIC (2018 NY Slip Op 50768(U))
[*1]| Forest Park Acupuncture, P.C. v MVAIC |
| 2018 NY Slip Op 50768(U) [59 Misc 3d 146(A)] |
| Decided on May 25, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 25, 2018
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2371 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Naim M. Peress of counsel), for appellant. Zara Javakov, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 5, 2014. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, 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, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.
Since MVAIC established that there had been no timely filing of a notice to make claim (see Insurance Law § 5208 [a]), plaintiff’s assignor is not a “covered person” (Insurance Law § 5221 [b] [2]). Thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant has not been satisfied (see M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [*2][App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In opposition to MVAIC’s cross motion, plaintiff failed to establish that leave had been obtained to file a late notice of claim or otherwise raise a triable issue of fact (see Insurance Law § 5208 [c]). In light of the foregoing, we reach no other issue.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018Charles Deng Acupuncture, P.C. v ELRAC, Inc. (2018 NY Slip Op 50774(U))
Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v ELRAC, Inc. (2018 NY Slip Op 50774(U))
[*1]| Charles Deng Acupuncture, P.C. v ELRAC, Inc. |
| 2018 NY Slip Op 50774(U) [59 Misc 3d 147(A)] |
| Decided on May 25, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 25, 2018
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-155 K C
against
ELRAC, Inc., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Brand, Glick & Brand, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 28, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s only argument as to defendant’s motion, the proof submitted by defendant was sufficient to demonstrate that plaintiff’s assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018Five Boro Psychological Servs., P.C. v MVAIC (2018 NY Slip Op 50778(U))
Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v MVAIC (2018 NY Slip Op 50778(U))
[*1]| Five Boro Psychological Servs., P.C. v MVAIC |
| 2018 NY Slip Op 50778(U) [59 Misc 3d 147(A)] |
| Decided on May 25, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 25, 2018
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-210 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Naim Peress of counsel), for appellant. Gary Tsirelman, P.C., for respondent (no brief filed).
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 28, 2015. The judgment, entered pursuant to a decision of that court dated September 10, 2014, after a nonjury trial, awarded plaintiff the principal sum of $958.32.
ORDERED that, on the court’s own motion, the notice of appeal from the decision dated September 10, 2014 is deemed a premature notice of appeal from the judgment entered May 28, 2015 (see CPLR 5520 [c]); and it is further,
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
In this action by a provider to recover assigned first-party no-fault benefits, the sole issue at a nonjury trial was whether plaintiff’s assignor was a “qualified person,” and, thus, whether she was eligible to recover no-fault benefits from defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC). Following the trial, the Civil Court awarded plaintiff judgment in the principal sum of $958.32.
For the reasons stated in Village Med. Supply, Inc. v MVAIC (53 Misc 3d 134[A], 2016 NY Slip Op 51421[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018Midwood Total Rehab, P.C. v GEICO Ins. Co. (2018 NY Slip Op 50763(U))
Reported in New York Official Reports at Midwood Total Rehab, P.C. v GEICO Ins. Co. (2018 NY Slip Op 50763(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
against
GEICO Insurance Company, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Russell, Friedman & Associates (Dara C. Goodman of counsel), for respondent.
Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated July 12, 2017. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.
Plaintiff commenced this action by an attorney-verified complaint to recover assigned first-party no-fault benefits in March 2011. Defendant interposed an answer on June 23, 2011. On December 1, 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3). On May 3, 2017, defendant moved pursuant to CPLR 3216 to dismiss the complaint as it had not been served with a notice of trial. On May 5, 2017, plaintiff served defendant with a notice of trial. Plaintiff’s counsel’s affirmation in opposition to defendant’s motion stated that the “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action.” By order dated July 12, 2017, the District Court denied the motion.
Once a 90-day demand is served upon a plaintiff, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [c]), or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Since plaintiff failed to do any of these, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43). Here, plaintiff’s bare statement in its attorney’s affirmation, after a two-month delay in responding to defendant’s 90-day notice, that its “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action,” failed to establish a justifiable excuse for its delay. Additionally, plaintiff’s attorney asserted no meritorious cause of action.
Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.
GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 24, 2018
Reported in New York Official Reports at Matter of Baker v Motor Veh. Acc. Indem. Corp. (2018 NY Slip Op 03676)
| Matter of Baker v Motor Veh. Acc. Indem. Corp. |
| 2018 NY Slip Op 03676 [161 AD3d 1070] |
| May 23, 2018 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Valencia Baker, Respondent, v Motor Vehicle Accident Indemnification Corporation, Appellant. |
Jamie E. Gangemi (Kornfeld, Rew, Newman & Simone, Suffern, NY [William S. Badura], of counsel), for appellant.
Scott Gilman, New York, NY, for respondent.
In a proceeding pursuant to Insurance Law § 5210 to compel the payment of a judgment, the Motor Vehicle Accident Indemnification Corporation appeals from (1) an order of the Supreme Court, Kings County (Johnny L. Baynes, J.), dated March 9, 2017, which granted the petition to compel it to pay the petitioner the principal sum of $38,548.67, and (2) a judgment of the same court entered April 13, 2017, which, upon the order, is in favor of the petitioner and against it in the total sum of $39,023.67.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified, on the law, (1) by deleting the provision thereof awarding the petitioner the principal sum of $38,548.67, and substituting therefor a provision awarding the petitioner the principal sum of $27,634.24, and (2) by deleting the provision thereof awarding the petitioner costs and disbursements in the sum of $475, and substituting therefor a provision awarding the petitioner costs in the sum of $200; as so modified, the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the appellant.
On November 3, 2004, the petitioner, a pedestrian, was injured by an uninsured vehicle owned by Lyudmila Rubin. A notice of claim was served upon the Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC) (see Insurance Law § 5208). The petitioner commenced a personal injury action against Rubin in the Supreme Court, Kings County. After trial, a judgment was entered on June 3, 2016, in favor of the petitioner and against Rubin in the total sum of $118,871 (hereinafter the underlying judgment).
MVAIC alleged that it sought, on several occasions, to tender its $25,000 statutory liability limit on the underlying judgment, and forwarded to the petitioner’s counsel a release reflecting the proper statutory amount. It is uncontested that MVAIC refused to tender payment until the petitioner executed the release. However, the petitioner’s counsel demanded and forwarded a release reflecting the sum of $30,108.46. The parties were unable to reach an agreement as to the [*2]amount to be paid and the petitioner thereafter commenced the instant proceeding pursuant to Insurance Law § 5210 against MVAIC to compel the payment of the underlying judgment. MVAIC opposed the petition. The Supreme Court issued an order dated March 9, 2017, granting the petition and directed MVAIC to pay the principal sum of $38,548.67. The order further directed that, in the event payment was not made within 30 days, the petitioner could enter judgment against MVAIC.
When MVAIC did not pay the sum directed in the order, the petitioner sought and obtained a judgment which was thereafter entered against MVAIC on April 13, 2017, in the total sum of $39,023.67. MVAIC appeals from the order and the judgment.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
“Where judgment has been entered against an uninsured defendant in favor of a qualified person, Insurance Law § 5210 provides that a qualified person may petition the court to compel MVAIC to pay the amount of a judgment against that uninsured defendant that remains unpaid, subject to the limitations contained therein” (Archer v Motor Veh. Acc. Indem. Corp., 118 AD3d 5, 9 [2014], citing Matter of Brandon v Motor Veh. Acc. Indem. Corp., 233 AD2d 604 [1996]). Here, the petitioner demonstrated that she obtained the underlying judgment against Rubin, which remained unpaid. However, the sum sought by the petitioner, and the amount the Supreme Court directed MVAIC to pay, exceeded MVAIC’s statutory limit of liability.
The maximum limit of MVAIC’s liability under the Insurance Law is $25,000 (see Insurance Law § 5210 [a] [1]). MVAIC’s contention that the petitioner is not entitled to interest because the delay in payment was caused by the plaintiff’s failure to execute a release in the proper amount is without merit. While MVAIC has the right to a release upon the settlement of a claim (see Insurance Law § 5213 [b]; CPLR 5003-a), MVAIC is not entitled to such a release when ordered to pay on a judgment. Here, the underlying action was not settled, but terminated with the entry of a judgment. No release is required to be tendered before the payment of a judgment, as it is not an agreement to pay, but an obligation to pay. While unconditional tender of a judgment amount stops the running of postjudgment interest (see Gamman v Silverman, 135 AD3d 814, 815 [2016]; Wireman v Reith, 220 AD2d 582, 583 [1995]; Meiselman v Allstate Ins. Co., 197 AD2d 561 [1993]), here, MVAIC conditioned the tender of the payment upon the execution of the release it provided. Thus, MVAIC’s contention that the petitioner caused the delay in payment of the underlying judgment is without merit.
However, contrary to the petitioner’s contention, MVAIC’s liability for interest should have been calculated based on the sum of $25,000, and such interest should have been computed from the date of entry of the unpaid underlying judgment, that is, June 3, 2016, at 9% per annum (see CPLR 5003, 5004; Matter of Matos-Miranda v Motor Veh. Acc. Indem. Corp., 20 AD2d 647, 647 [1964]; Matter of Moore v Motor Veh. Acc. Indem. Corp., 18 AD2d 1006 [1963], affd 13 NY2d 1002 [1963]; see also Matter of Russo v Kemper Group, 146 AD2d 701, 702 [1989]). Thus, the Supreme Court should have awarded interest in the sum of $1,934.24 (314 days x $6.16). In addition, although the court properly directed MVAIC to pay the costs awarded to the petitioner in the underlying judgment, which were $700, and the costs in this proceeding, which were $200 (see Walsh v Kickery, 24 AD2d 838 [1965]; Montefel v Medura, 19 AD2d 828, 828 [1963]), the court should not have directed MVAIC to pay disbursements in the sum of $275, since MVAIC is not obligated to pay disbursements pursuant to Insurance Law § 5210. Accordingly, the petitioner is entitled to recover from MVAIC the principal sum of $27,634.24 ($25,700 [principal and costs from the underlying judgment] plus $1,934.24 [interest]), plus costs in the sum of $200.
The parties’ remaining contentions are without merit. Mastro, J.P., Balkin, Cohen and Duffy, JJ., concur.