December 11, 2020

Pacific Med. Servs., P.C. v Country-Wide Ins. Co. (2020 NY Slip Op 51502(U))

https://www.beynensonlaw.com/case-law/pacific-med-servs-p-c-v-country-wide-ins-co-2020-ny-slip-op51502u/

Court: Appellate Term, Second Department
Decided: December 11, 2020
Citation: 2020 NY Slip Op 51502(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure Interest and attorney fees

Cite as

Pacific Med. Servs., P.C. v Country-Wide Ins. Co., 2020 NY Slip Op 51502(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.

A sua sponte order vacating a no-fault judgment is not appealable as of right. The provider moved under CPLR 5019 (a) to replace simple statutory interest with compound interest on a judgment entered after an unpaid settlement. Civil Court denied recalculation and sua sponte vacated the judgment because of delay in entering it. The Appellate Term, Second Department, dismissed the vacatur appeal under CCA 1702 (a) (2) and declined leave to appeal. It dismissed the recalculation appeal as moot because the judgment had been vacated, leaving the provider without appellate relief. The court nevertheless noted that claims submitted before April 5, 2002 are governed by the former compound-interest regulation, 11 NYCRR 65.15 (h) (1).

Reported in New York Official Reports at Pacific Med. Servs., P.C. v Country-Wide Ins. Co. (2020 NY Slip Op 51502(U))

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

Pacific Medical Services, P.C., as Assignee of Charles E. Smith, Appellant,
against
Country-Wide Insurance Co., Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered April 3, 2018. The order denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered January 12, 2017 and, sua sponte, vacated the January 12, 2017 judgment.

ORDERED that so much of the appeal as is from the portion of the order as sua sponte vacated the January 12, 2017 judgment is dismissed; and it is further,

ORDERED that so much of the appeal as is from the portion of the order as denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered January 12, 2017 is dismissed as moot.

This action by a provider to recover assigned first-party no-fault benefits for claims submitted to defendant in 1999, was settled in 2009. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 12, 2017 (see CPLR 5003-a) awarding statutory no-fault interest at a simple rate (see 11 NYCRR 65-3.9 [a], effective April 5, 2002). Plaintiff moved, pursuant to CPLR 5019 (a), to have the interest recalculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). By order entered April 3, 2018, the Civil Court denied plaintiff’s motion and, sua sponte, vacated the January 12, 2017 judgment, finding that, because of plaintiff’s “delay” in entering judgment, plaintiff was not entitled to any [*2]prejudgment statutory no-fault interest (but see Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

The portion of the order which vacated the January 12, 2017 judgment 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. 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 the record before us does not indicate that plaintiff has made such a motion.

Since the January 12, 2017 judgment has been vacated, plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in that judgment is moot. We note, however, that claims submitted before April 5, 2002 are governed by the former regulations providing for compound interest (see Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the appeal is dismissed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 11, 2020

Cited in this decision

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

Seaside Rehabilitation v Allstate Ins. Co. (2019 NY Slip Op 50918(U)) Contrasted (cf., but see)The insurer failed to justify tolling no-fault interest because it did not show that the provider prevented settlement payment.
Active Care Med. Supply Corp. v Delos Ins. Co. (2017 NY Slip Op 50650(U)) FollowedA sua sponte fee award is not appealable as of right under CCA 1702 (a) (2).
Belt Parkway Imaging, P.C. v State Wide Ins. Co. (2010 NY Slip Op 52229(U))The insurer failed to prove provider ineligibility based on unlicensed control, even under a preponderance standard.

Similar decisions

Air Plus Surgical Supply, Inc. v Country Wide Ins. Co. (2020 NY Slip Op 51429(U))A provider's appeal from sua sponte vacatur of its judgment was dismissed, and its request to recalculate no-fault interest was moot.
Health Value Med., P.C. v Country Wide Ins. Co. (2019 NY Slip Op 52036(U))The provider's claims submitted in March 2000 were governed by the former no-fault regulations requiring compound interest.
Health Value Med., P.C. v Country Wide Ins. (2022 NY Slip Op 51137(U))A no-fault claim arising from an accident before April 5, 2002 is governed by the former regulations requiring compound interest.
Biotech Surgical Supply v Country Wide Ins. Co. (2022 NY Slip Op 50376(U))The provider's claims submitted in 2001 were governed by former no-fault regulations requiring compound interest.
Medtech Med. Supply, Inc. v Country-Wide Ins. Co. (2023 NY Slip Op 50277(U))The provider's statutory no-fault interest award was recalculated at a compound rate under the former regulations.