January 26, 2024

Biotech Surgical Supply, Inc. v Country Wide Ins. Co. (2024 NY Slip Op 50118(U))

Headnote

The relevant facts of the case were that Biotech Surgical Supply, Inc., as the assignee of Louise Moses, was seeking to recover first-party, no-fault benefits for a claim that arose from an accident in 1999. The case was settled in 2003, but the defendant did not pay the settlement amount. A judgment was entered in 2017, awarding plaintiff statutory no-fault interest from the date of settlement at a simple rate. The main issue decided by the court was whether the Civil Court erred in tolling the accrual of statutory no-fault interest from the date of the settlement to the date of plaintiff's motion. The court held that the Civil Court did err in tolling the accrual of interest given that the defendant did not demonstrate that plaintiff had prevented them in any way from paying the settlement amount. The holding of the case was that the judgment was reversed, the portion of the order that tolled the accrual of statutory no-fault interest was vacated, and the matter was remitted to the Civil Court for the entry of a new judgment in accordance with the decision and order.

Reported in New York Official Reports at Biotech Surgical Supply, Inc. v Country Wide Ins. Co. (2024 NY Slip Op 50118(U))

[*1]
Biotech Surgical Supply, Inc. v Country Wide Ins. Co.
2024 NY Slip Op 50118(U) [81 Misc 3d 142(A)]
Decided on January 26, 2024
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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-1003 Q C

Biotech Surgical Supply, Inc., as Assignee of Louise Moses, Appellant,

against

Country Wide Insurance Company, Respondent.


Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Jaffe & Velasquez, LLP, for respondent (no brief filed).

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered September 14, 2023. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $500.23 pursuant to a stipulation of settlement entered into on February 3, 2003, awarded plaintiff statutory no-fault interest from February 14, 2017. The appeal from the judgment brings up for review so much of an order of that court entered February 22, 2018 as, sua sponte, tolled the accrual of statutory no-fault interest.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, so much of the February 22, 2018 order as, sua sponte, tolled the accrual of statutory no-fault interest is vacated, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

This action by a provider to recover assigned first-party no-fault benefits for a claim arising out of an accident that occurred on October 6, 1999 was commenced in 2001 and settled on February 3, 2003. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 30, 2017 pursuant to CPLR 5003-a, awarding plaintiff statutory no-fault interest from the date of the settlement at a simple rate. On February 14, 2017, plaintiff moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 30, 2017 judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. By order entered February 22, 2018, the Civil Court granted the motion and directed the clerk to recalculate the interest at a rate of 2% per month, compounded, but, sua sponte, tolled the accrual [*2]of statutory no-fault interest through February 14, 2017, the date plaintiff filed its motion. A judgment was entered on September 14, 2023 accordingly, from which plaintiff appeals on the ground of inadequacy.

Plaintiff correctly argues that the Civil Court erred in tolling the statutory no-fault interest from the date of the settlement to the date of plaintiff’s motion. 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” (Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal quotation marks omitted]; see CPLR 5003-a [e]; NCT Diagnostics, Inc. v Countrywide Ins. Co., 77 Misc 3d 133[A], 2022 NY Slip Op 51247[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). 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 [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 & 13th Jud Dists 2018]). Therefore, the Civil Court erred in tolling the accrual of interest from the date of the settlement until the date plaintiff filed the instant motion (see Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918[U]).

Accordingly, the judgment, insofar as appealed from, is reversed, so much of the February 22, 2018 order as, sua sponte, tolled the accrual of statutory no-fault interest is vacated, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 26, 2024