[*1]

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.

Jaffe & Velazquez, LLP, New York (Jean H. Kang of counsel), for respondent.

Judgment, Supreme Court, New York County (Lynn R. Kotler, J.), entered November 30, 2018, awarding respondent attorney’s fees in the sum total of $980 in connection with a no-fault arbitration award, unanimously modified, on the law, to remand the matter to Supreme Court for a determination of respondent’s reasonable attorney’s fees incurred in the CPLR article 75 proceeding brought by petitioner to vacate the arbitration award and on this appeal, and otherwise affirmed, without costs.

“The attorney’s fee for services rendered . . . in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10 [j] [4]). The term “court appeal” applies to a proceeding taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2d Dept 2017]). Accordingly, respondent TC Acupuncture, as a prevailing applicant for payment by petitioner insurer of attorney’s fees in an article 75 proceeding reviewing an arbitration award, is entitled to an additional award of attorney’s fees, as fixed by the court, for its motion to modify the order, in a 2015 article 75 proceeding denying Countrywide’s petition to vacate the arbitration award, to include a ruling confirming the arbitration and its opposition to Countrywide’s motion to reargue that order. Supreme Court erred in failing to award these additional fees.

Respondent is also entitled to the attorney’s fees incurred in this appeal to this Court of the order issued in the article 75 proceeding, to be fixed by the court, upon remand, pursuant to 11 NYCRR 65-4.10 (j) (4) (see Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [1st Dept 2018]). Concur—Richter, J.P., Gische, Mazzarelli, Gesmer, JJ.

Glinkenhouse, Floumanhaft & Queen, by Glinkenhouse Queen (Alan Queen and Stephen J. Green of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 22, 2018. The order, insofar as appealed from, sua sponte stayed the accrual of no-fault statutory interest from February 3, 2003 through February 14, 2017.

ORDERED that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2003. Defendant did not pay the settlement amount, and a judgment was entered on January 30, 2017, pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 30, 2017 judgment by recalculating the interest. By order entered February 22, 2018, the Civil Court granted the motion but, sua sponte, stayed the accrual of statutory no-fault interest from February 3, 2003 through February 14, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual of interest.

The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. [*2]Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but plaintiff failed to make such a motion.

With respect to the position of the dissenting justice, we submit that deeming the appeal as something other than an improper appeal without permission should not be done routinely, particularly as there have been numerous such appeals made without permission in cases similar to this.

Accordingly, the appeal is dismissed.

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

WESTON, J., dissents and votes to, on the court’s own motion, treat the notice of appeal as an application for leave to appeal and grant leave, and, thereupon, to reverse the order, insofar as appealed from, and to vacate so much of the order as stayed the accrual of statutory no-fault interest, in the following memorandum:

This is yet another case in which this court has had to address the Civil Court’s sua sponte stay of the accrual of statutory no-fault interest. While it may be expedient to dismiss the appeal, in my opinion, plaintiff’s notice of appeal should be treated as a motion for leave to appeal and such leave granted. Alternatively, plaintiff’s motion may be treated as a motion to resettle the judgment, and the court’s order, which materially changed the prior judgment, is appealable (see Weksler v Weksler, 81 AD3d 401 [2011]; Gormel v Prudential Ins. Co. of Am., 151 AD2d 1048 [1989]). Upon granting leave, I would reverse so much of the order as stayed the accrual of no-fault statutory interest.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2003. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 30, 2017, pursuant to CPLR 5003-a. Plaintiff appeals from so much of an order of the Civil Court entered February 22, 2018 as sua sponte stayed the accrual of no-fault statutory interest from February 3, 2003 through February 14, 2017.

The Civil Court erred in staying interest from the date of the settlement of the action to the date when the motion was made. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th [*3]& 13th Jud Dists 2018]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]). Therefore, the Civil Court erred in tolling the accrual of interest (see Craniofacial Pain Mgt., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]).

Accordingly, the order, insofar as appealed from, should be reversed, and so much of the order as stayed the accrual of statutory no-fault interest from February 3, 2003 to February 14, 2017 should be vacated.

Glinkenhouse, Floumanhaft & Queen, by Glinkenhouse Queen (Alan Queen and Stephen J. Green of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 20, 2018. The order, insofar as appealed from, sua sponte stayed the accrual of no-fault statutory interest from February 20, 2008 through February 22, 2017.

ORDERED that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2008. Defendant did not pay the settlement amount, and a judgment was entered on January 31, 2017 pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 31, 2017 judgment by recalculating the interest. By order entered February 20, 2018, the Civil Court granted the motion but, sua sponte, stayed the accrual of statutory no-fault interest from February 20, 2008 through February 22, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual of interest.

The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but plaintiff failed to make such a motion.

With respect to the position of the dissenting justice, we submit that deeming the appeal as something other than an improper appeal without permission should not be done routinely, particularly as there have been numerous such appeals made without permission in cases similar to this.

Accordingly, the appeal is dismissed.

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

WESTON, J., dissents and votes to, on the court’s own motion, treat the notice of appeal as an application for leave to appeal and grant leave, and, thereupon, to reverse the order, insofar as appealed from, and to vacate so much of the order as stayed the accrual of statutory no-fault interest, in the following memorandum:

This is yet another case in which this court has had to address the Civil Court’s sua sponte stay of the accrual of statutory no-fault interest. While it may be expedient to dismiss the appeal, in my opinion, plaintiff’s notice of appeal should be treated as a motion for leave to appeal and such leave granted. Alternatively, plaintiff’s motion may be treated as a motion to resettle the judgment, and the court’s order, which materially changed the prior judgment, is appealable (see Weksler v Weksler, 81 AD3d 401 [2011]; Gormel v Prudential Ins. Co. of Am., 151 AD2d 1048 [1989]). Upon granting leave, I would reverse so much of the order as stayed the accrual of no-fault statutory interest.

This action by a provider to recover assigned first-party no-fault benefits was settled in February 2008. Defendant did not pay the settlement amount, and a judgment was entered on January 31, 2017 pursuant to CPLR 5003-a. Plaintiff appeals from so much of an order of the Civil Court entered February 20, 2018 as sua sponte stayed the accrual of no-fault statutory interest from February 20, 2008 through February 22, 2017.

The Civil Court erred in staying interest from the date of the settlement of the action to the date when the motion was made. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v [*3]Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]). Therefore, the Civil Court erred in tolling the accrual of interest (see Craniofacial Pain Mgt., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]).

Accordingly, the order, insofar as appealed from, should be reversed, and so much of the order as stayed the accrual of statutory no-fault interest from February 20, 2008 to February 22, 2017 should be vacated.

[*1]

Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber of counsel), for appellant.

Nicoletti Gonson Spinner Ryan Gulino Pinter LLP, New York, NY (Benjamin Gonson of counsel), for respondents.

In an action, inter alia, for certain declaratory relief, the nominal defendant Hereford Insurance Company appeals from an order of the Supreme Court, Kings County (Andrew Borrok, J.), dated March 29, 2018. The order, insofar as appealed from, denied the motion of the nominal defendant Hereford Insurance Company for leave to enter a default judgment on its counterclaim for loss transfer pursuant to Insurance Law § 5105 (a) insofar as asserted against the plaintiff Repwest Insurance Company and deemed the reply of the plaintiff Repwest Insurance Company to the counterclaim to have been served.

Ordered that the order is reversed insofar as appealed from, on the law, with costs to the plaintiff Repwest Insurance Company, and the counterclaim of the nominal defendant Hereford Insurance Company is dismissed for lack of subject matter jurisdiction.

The plaintiff Repwest Insurance Company (hereinafter Repwest) commenced this action for a judgment declaring, inter alia, that it has no duty to provide insurance coverage for any claims arising out of a collision between a livery vehicle insured by the nominal defendant Hereford Insurance Company (hereinafter Hereford) and a vehicle driven by the defendant Nazim Hanif and insured by Repwest. The defendants Dinorah Carmen Anglero, Dario Ferrer de la Cruz, and Ramon Duarte Garcia were passengers in the livery vehicle and no-fault benefits were paid on their behalf by Hereford. Repwest alleged that there is no coverage for the subject incident because it was not an accident, but rather the result of an intentional act/fraudulent scheme. Thereafter, Hereford interposed an answer to the complaint and asserted a counterclaim against Repwest, among others, for loss transfer pursuant to Insurance Law § 5105 (a).

After Repwest failed to timely reply to the counterclaim, Hereford moved for leave to enter a default judgment on its counterclaim insofar as asserted against Repwest. The Supreme Court denied Hereford’s motion and deemed Repwest’s reply to the counterclaim to have been served. Hereford appeals.

Pursuant to Insurance Law § 5105 (b), “[t]he sole remedy of any insurer or compensation provider to recover on a claim arising pursuant to subsection (a) hereof, shall be the submission of the controversy to mandatory arbitration pursuant to procedures promulgated or approved by the superintendent” (see Matter of Infinity Indem. Ins. Co. v Hereford Ins. Co., 149 AD3d 1075, 1076 [2017]; see also State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976, 977 [1989]). Contrary to Hereford’s contention, since its counterclaim is for loss transfer pursuant to section 5105 (a), the counterclaim is subject to mandatory arbitration and the Supreme Court had no subject matter jurisdiction over the counterclaim (see Insurance Law § 5105 [b]; State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 977-978). Repwest’s complaint and its disclaimer of coverage for the subject incident do not dictate a different result (see State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 977-978; DTG Operations, Inc. v American Tr. Ins. Co., 2013 NY Slip Op 30119[U] [Sup Ct, NY County 2013]; 11 NYCRR 65-4.11 [a] [6]).

Although Repwest did not seek dismissal of the counterclaim in the Supreme Court, “a court’s lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action” (Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008] [internal quotation marks omitted]; see Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 AD3d 121, 133 [2018]). Since the court lacked subject matter jurisdiction over Hereford’s counterclaim, the counterclaim should have been dismissed (see Empire Ins. Co. v Metropolitan Suburban Bus. Auth., 159 AD2d 312, 312 [1990]; see also State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 978).

In light of our determination, we need not reach the parties’ remaining contentions. Rivera, J.P., Dillon, Roman and Duffy, JJ., concur.

Decided on December 13, 2019

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

Decided on December 13, 2019

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

Decided on December 13, 2019

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

Decided on December 13, 2019

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

Decided on December 13, 2019

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 30, 2016. The order granted the branches of a motion by defendant seeking (1) to vacate a judgment of that court entered October 6, 2011 pursuant to an August 11, 2011 order of that court (Johnny Lee Baynes, J.) granting plaintiff’s unopposed motion for summary judgment; (2) to, in effect, vacate the August 11, 2011 order; and (3) to dismiss the complaint.

ORDERED that the order entered November 30, 2016 is modified by providing that the branches of defendant’s motion seeking to, in effect, vacate the August 11, 2011 order and to dismiss the complaint are denied; as so modified, the order is affirmed, without costs.

Plaintiff SS Medical Care, P.C. (SS Medical) commenced this action to recover assigned first-party no-fault benefits for medical services it had provided as a result of a motor vehicle accident which had occurred on December 7, 2009. After issue had been joined, SS Medical moved for summary judgment, and defendant 21st Century Insurance Company (21st Century) failed to submit any opposition. By order entered August 11, 2011, the Civil Court (Johnny Lee Baynes, J.) granted the motion, finding that SS Medical had established its entitlement to judgment. The Civil Court, noting in its August 11, 2011 order that defendant had represented that it was filing a declaratory judgment action in the Supreme Court, stated that, “if [defendant] fails to receive a stay [from the Supreme Court] within 60 days of this order, the [plaintiff] is directed to enter judgment ex parte.” A judgment was entered in the Civil Court on October 6, 2011, before the expiration of the 60-day period.

After the August 11, 2011 order had been entered, 21st Century commenced a declaratory judgment action in the Supreme Court, Nassau County, against SS Medical and its assignor herein, among other parties, pertaining to the December 7, 2009 accident, as well as other accidents that had occurred between June 2009 and March 2010, involving other named assignors. On December 19, 2011, the Supreme Court granted 21st Century’s motion, pursuant to CPLR 2201 and 6301, to “temporarily stay[]” pending and future lawsuits against 21st Century pertaining to, insofar as is relevant, the health care services, assignor and insurance policy at issue. In an order entered May 29, 2012, the Supreme Court directed that the stay would continue during the pendency of the Supreme Court action. By order entered May 6, 2015, the Supreme Court granted a motion by 21st Century for summary judgment in the declaratory judgment action, finding that the insurer had established that the collision at issue was intentional and, thus, not covered by the policy in question, and that the provider, i.e., plaintiff herein, had failed to raise a triable issue of fact.

Thereafter, 21st Century moved, in the Civil Court, to, among other things, vacate the judgment in favor of SS Medical entered October 6, 2011 pursuant to the August 11, 2011 order and, in effect, that order, and to dismiss the complaint on the basis of the May 6, 2015 order in the Supreme Court declaratory judgment action. In support of the motion, 21st Century asserted, as its excuse for failing to oppose SS Medical’s motion in the Civil Court for summary judgment, that it had been in the process of filing the declaratory judgment action in the Supreme Court. SS Medical opposed the motion and appeals from an order of the Civil Court (Robin S. Garson, J.) entered November 30, 2016 which granted the above-stated branches of defendant’s motion.

The judgment that was entered in favor of plaintiff in the Civil Court was in violation of the August 11, 2011 order, which provided that plaintiff could enter judgment after the expiration of 60 days from the Civil Court order if defendant had failed to obtain a stay from the Supreme Court. In is undisputed that plaintiff entered judgment before the expiration of the 60 days. Consequently, the judgment must be vacated.

However, to vacate so much of the August 11, 2011 order of the Civil Court as awarded plaintiff summary judgment on default, defendant was required to establish, among other things, a reasonable excuse for its default in opposing plaintiff’s motion for summary judgment (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The excuse proffered by defendant’s attorney was merely a conclusory statement that defendant had been in the process of filing the declaratory judgment action in the Supreme Court, which, in any event, does not constitute a reasonable excuse for failing to submit opposition to plaintiff’s motion (see SS Med. Care, P.C. v 21st Century Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51268[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As defendant failed to demonstrate an excusable default, it is unnecessary for this court to consider whether defendant demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion for summary judgment (see Wells Fargo Bank, N.A. v Syed, 160 AD3d 914 [2018]). In view of the foregoing, we reach no other arguments asserted by the parties.

Accordingly, the order entered November 30, 2016 is modified by providing that that the branches of defendant’s motion seeking, in effect, to vacate the August 11, 2011 order and to dismiss the complaint are denied.

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