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Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 27, 2020

APPEARANCES OF COUNSEL

Glinkenhouse, Floumanhaft & Queen, by Glinkenhouse Queen (Alan Queen and Stephen J. Green of counsel), for appellant.

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

Ordered that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled by a two-attorney stipulation dated June 16, 2003. Defendant did not pay the settlement amount, and a judgment was entered on January 12, 2017, pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), in effect, to correct the January 12, 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 June 16, 2003, 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. 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 [*2]as something other than an improper appeal without permission should not be done{**71 Misc 3d at 13} routinely, particularly as there have been numerous such appeals made without permission in cases similar to this.

Accordingly, the appeal is dismissed.

Weston, J. (dissenting and voting 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 June 2003. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 12, 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 June 16, 2003, 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 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 {**71 Misc 3d at 14}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 June 16, 2003, through February 22, 2017, should be vacated.

Aliotta and Siegal, JJ., concur; Weston, J.P., dissents in a separate memorandum.

Decided on November 20, 2020

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

Glinkenhouse, Floumanhaft & Queen (Alan Queen of counsel), for appellant. Jaffe & Velazquez, 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 August 1, 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 April 17, 2017 and, sua sponte, vacated the April 17, 2017 judgment.

ORDERED that so much of the appeal as is from the portion of the order as sua sponte vacated the April 17, 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 April 17, 2017 is dismissed as moot.

This action by a provider to recover assigned first-party no-fault benefits for a claim for services rendered in 1999 was settled in 2008. Defendant did not pay the settlement amount, and a judgment was entered on April 17, 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 August 1, 2018, the Civil Court denied plaintiff’s motion and, sua sponte, vacated the April 17, 2017 judgment, finding that, because of plaintiff’s “delay” in entering judgment, plaintiff was not entitled to any 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 April 17, 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]; [*2]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 April 17, 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.

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

Decided on November 13, 2020

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

Decided on November 13, 2020

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

Decided on November 13, 2020

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

Decided on November 13, 2020

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

Goldberg, Miller and Rubin, P.C. (Timothy R. Bishop of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered November 8, 2018, deemed from a judgment of that court entered December 19, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 8, 2018 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,183.05.

ORDERED that the judgment is reversed, with $30 costs, the order dated November 8, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that defendant had established that there was no coverage for no-fault benefits since defendant had not issued an automobile insurance policy which would cover the underlying accident, and granting plaintiff’s cross motion for summary judgment. A judgment was subsequently entered on December 19, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

“[A] lack of coverage defense may be raised without regard to any issue as to the [*2]propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its [ ] motion were sufficient to establish that the policy being sued upon was a workers’ compensation insurance policy which did not cover plaintiff’s claim to receive reimbursement of assigned first-party no-fault benefits. As plaintiff failed to demonstrate the existence of an applicable automobile insurance policy issued by defendant or to otherwise raise a triable issue of fact, [defendant’s motion for summary judgment should have been granted]” (Ultimate Health Prods., Inc. v Hereford Ins. Co., 51 Misc 3d 127[A], 2016 NY Slip Op 50367[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Flatbush Chiropractic, P.C. v Hereford Ins. Co., 49 Misc 3d 149[A], 2015 NY Slip Op 51712[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the judgment is reversed, the order dated November 8, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion is denied.

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

Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered November 28, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims submitted by plaintiff A.C. Medical, P.C. is granted; as so modified, the order is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

With respect to plaintiff A.C. Medical, P.C. (ACM), defendant established that initial and follow-up letters scheduling an examination under oath (EUO) had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that ACM had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As ACM failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing so much of the complaint as sought to recover upon claims submitted by ACM.

As to the remaining claims at issue which were submitted by plaintiff Vital Chiropractic, P.C. (Vital), defendant contends that its initial EUO scheduling letter tolled defendant’s time to pay or deny all of the claims at issue (see 11 NYCRR 65-3.5 [b]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), that the toll was maintained by timely follow-up scheduling letters (see 11 NYCRR 65-3-6 [b) and that defendant had timely denied plaintiff’s claims (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Upon a review of the record, we find that defendant’s motion failed to establish, as a matter of law, that defendant had timely denied Vital’s claims after Vital had failed to appear at both an initial and a follow-up EUO.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims submitted by plaintiff A.C. Medical, P.C. is granted.

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

Decided on November 13, 2020

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