December 18, 2020

A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 51520(U))

https://www.beynensonlaw.com/case-law/a-m-med-servs-p-c-v-state-farm-mut-ins-co-2020-ny-slip-op51520u/

Court: Appellate Term, Second Department
Decided: December 18, 2020
Citation: 2020 NY Slip Op 51520(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Interest and attorney fees Discovery and procedure
Legal questions: When no-fault interest is tolled (see the maps)

Cite as

A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co., 2020 NY Slip Op 51520(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's failure to prosecute after denial of summary judgment justified tolling no-fault statutory interest. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's motion to toll interest from January 1, 2005 to July 12, 2017. The provider took no meaningful action after its summary judgment motion was denied until it filed a notice of trial. Former 11 NYCRR 65.15 (h), now 11 NYCRR 65-3.9 (d), permits tolling of interest under Insurance Law § 5106 (a) when an applicant unreasonably delays court proceedings. The insurer's alleged failure to respond to discovery demands, even if true, did not establish that the insurer had unreasonably delayed the action.

Reported in New York Official Reports at A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 51520(U))

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

A.M. Medical Services, P.C., as Assignee of Boris Simanovsky, Appellant,
against
State Farm Mutual Insurance Co., Respondent.

Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maurice E. Muir, J.), entered April 20, 2018. The order, insofar as appealed from and as limited by the brief, granted the branch of defendant’s motion seeking to toll the accrual of no-fault statutory interest based upon plaintiff’s delay in the prosecution of the action to the extent of tolling that interest from January 1, 2005 to July 12, 2017.

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

Plaintiff commenced this action in 2002 to recover assigned first-party no-fault benefits for services allegedly rendered in 2001. The record demonstrates that issue was joined in July 2002, that a motion by plaintiff for summary judgment was denied in December of 2004, and that plaintiff served and filed a notice of trial in or about July 2017. Plaintiff appeals, as limited by the brief, from so much of an order entered April 20, 2018 as granted the branch of defendant’s motion seeking to toll the accrual of no-fault statutory interest to the extent of tolling that interest from January 1, 2005 to July 12, 2017.

Where a provider does not commence a no-fault action within 30 days of receipt of the insurer’s denial of claim form, the Insurance Department Regulations provide that statutory interest (see Insurance Law § 5106 [a]) does not begin to accumulate until an action is commenced (11 NYCRR 65-3.9 [c]). If an action has been commenced, statutory interest accumulates “unless the applicant unreasonably delays the . . . court proceeding” (former 11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]). In this case, since plaintiff moved for [*2]summary judgment, but took no meaningful action to prosecute the case after that motion was denied until it filed a notice of trial on July 12, 2017, the Civil Court properly tolled the no-fault interest until that date. Plaintiff’s assertion on appeal, that defendant failed to serve responses to plaintiff’s discovery demands, even if true, is not a basis to find that it was defendant who had “unreasonably delay[ed]” the action (see Vitality Chiropractic, P.C. v Countrywide Ins., 59 Misc 3d 150[A], 2018 NY Slip Op 50838[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; 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]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 18, 2020

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

When no-fault interest is tolled

Open the full map

When is 2% no-fault interest tolled because the claimant delayed suing, arbitrating, prosecuting or collecting?

This decision: Interest suspended for a period of the claimant's unreasonable delay in the arbitration, action or entry of judgment (65-3.9 [d])

Affirmed tolling of statutory interest from January 2005 to July 2017 because the provider took no meaningful action after its summary judgment motion was denied until filing a notice of trial; the insurer's alleged discovery default did not shift the delay.

Tolled: no timely suitTolled: claimant's delayNot tolledThis decisionCites it or cited by itCited or followed

Of the 73 decisions on this question in the Second Department courts and the Court of Appeals, 24 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Vitality Chiropractic, P.C. v Countrywide Ins. (2018 NY Slip Op 50838(U)) FollowedA provider's unreasonable delay in prosecuting a no-fault action tolls statutory prejudgment interest.
Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co. (2016 NY Slip Op 51240(U)) FollowedThe provider's years of inaction delayed the accrual of statutory interest until it moved to compel discovery.

Similar decisions

A.M. Med. Servs., P.C. v Travelers Ins. Co. (2020 NY Slip Op 50459(U))The provider's statutory interest was tolled during its unreasonable delay between discovery responses and filing a notice of trial.
GPM Chiropractic, P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 51521(U))Statutory interest was tolled from November 26, 2005 to April 13, 2018 because the provider took no meaningful action to prosecute.
GPM Chiropractic, P.C. v MVAIC (2020 NY Slip Op 51301(U))The provider's unreasonable delay in prosecuting its no-fault action warranted tolling statutory interest until a notice of trial was duly filed.
PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2021 NY Slip Op 50719(U))An order that leaves a motion branch undecided is not appealable as to that branch.
Metro Med. Diagnostics, P.C. v Country-Wide Ins. Co. (2022 NY Slip Op 51248(U))The provider's statutory no-fault interest was improperly tolled after settlement because the insurer did not show any impediment to payment.