December 13, 2019

NCT Diagnostics, Inc. v Countrywide Ins. Co. (2019 NY Slip Op 52039(U))

https://www.beynensonlaw.com/case-law/nct-diagnostics-inc-v-countrywide-ins-co-2019-ny-slip-op-52039u/

Court: Appellate Term, Second Department
Decided: December 13, 2019
Citation: 2019 NY Slip Op 52039(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Interest and attorney fees Discovery and procedure

Cite as

NCT Diagnostics, Inc. v Countrywide Ins. Co., 2019 NY Slip Op 52039(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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.

A sua sponte stay of no-fault interest accrual is not appealable as of right under CCA 1702 (a) (2). After an unpaid settlement resulted in a judgment under CPLR 5003-a, the provider moved under CPLR 5019 (a) to recalculate interest. The Civil Court granted correction but sua sponte stayed interest accrual from April 9, 2008 through February 22, 2017. That portion of the order addressed no demand for relief made on notice. The Appellate Term, Second Department, dismissed the provider's appeal and declined leave to appeal. Under Sholes v Meagher and CCA 1702 (a) (3), the provider could have moved to vacate the stay and appealed a denial as of right, but had not done so.

Reported in New York Official Reports at NCT Diagnostics, Inc. v Countrywide Ins. Co. (2019 NY Slip Op 52039(U))

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

NCT Diagnostics, Inc., as Assignee of Ruben Mulrain, Appellant,
against
Countrywide Insurance Company, Respondent.

Glinkenhouse Queen, Esqs. (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 April 9, 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 April 2008. Defendant did not pay the settlement amount, and a judgment was subsequently 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 20, 2018, the Civil Court granted the motion but, sua sponte, stayed the accrual of statutory no-fault interest from April 9, 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 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.

Accordingly, the appeal is dismissed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019

Cited in this decision

Active Care Med. Supply Corp. v Delos Ins. Co. (2017 NY Slip Op 50650(U))A sua sponte fee award is not appealable as of right under CCA 1702 (a) (2).

Similar decisions

Metro Med. Diagnostics, P.C. v Country Wide Ins. Co. (2019 NY Slip Op 52037(U))A sua sponte stay of no-fault interest accrual is not appealable as of right under CCA 1702 (a) (2).
Biotech Surgical Supply, Inc. v Country Wide Ins. Co. (2019 NY Slip Op 52143(U))The provider's appeal from a sua sponte stay of no-fault interest was dismissed because the ruling was not appealable as of right.
Trans Med. Supply, Inc. v Country Wide Ins. Co. (2020 NY Slip Op 20364)The provider's appeal from a sua sponte stay of no-fault interest was dismissed because that ruling was not appealable as of right.
Pacific Med. Servs., P.C. v Country-Wide Ins. Co. (2020 NY Slip Op 51502(U))A sua sponte order vacating a no-fault judgment is not appealable as of right.
Family One Chiropractor, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 52142(U))The provider's appeal from a sua sponte interest stay was dismissed because no appeal lay as of right and leave was declined.