The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Brian Rayhill (Ivy Cherian and Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated April 18, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denying plaintiff’s cross-motion for summary judgment.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JPC Med., P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 136[A], 2022 NY Slip Op 50562[U], *1 [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2022]; JPF Med. Servs., P.C. v Nationwide Ins., 69 Misc 3d 127[A], 2020 NY Slip Op 51122[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.

Plaintiff’s cross-motion for summary judgment was properly denied, as plaintiff failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Brian Rayhill (Ivy Cherian and Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated April 10, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denying plaintiff’s cross-motion for summary judgment.

For the reasons stated in JSJ Anesthesia Pain Mgt., PLLC, as Assignee of Gardner-Bowlyn, Janet v Nationwide Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-655 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen E. Edwards, J.), dated February 22, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to compel plaintiff to accept defendant’s late answer.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor as a result of a motor vehicle accident which occurred on April 22, 2015. Defendant was personally served with process at its Illinois office on September 29, 2020. Defendant did not timely appear or answer the complaint. It is undisputed that, in February 2021, defendant contacted plaintiff’s counsel and requested that the action be voluntarily discontinued on the ground that there was no coverage under the insurance policy, as the policy had been cancelled effective April 16, 2015 due to nonpayment of the premium. In an email sent on March 15, 2021, plaintiff’s counsel stated that it would not voluntarily discontinue the action. Defense counsel served an answer on March 25, 2021, and plaintiff rejected it as untimely.

By notice of motion dated June 16, 2021, defendant moved to compel plaintiff to accept defendant’s late answer, pursuant to CPLR 3012 (d), alleging, as is relevant to this appeal, that there was a reasonable excuse for its delay in answering. In support of its motion, defendant submitted an affidavit of its employee who averred that the delay was due to defendant’s [*2]difficulty in connecting the summons and complaint to the imsurance policy and claim file. The policy was inactive and defendant had been served in Illinois even though the policy was issued in Nevada, and New York was the site of the accident and lawsuit. Once the policy and claim file were identified, there was an additional delay in answering, as defendant contacted plaintiff’s counsel to request that the action be voluntarily discontinued on the ground that there was no active policy coverage at the time of the accident. In opposition, plaintiff argued that defendant had failed to proffer a reasonable excuse for its delay in answering, instead admitting to mere law office neglect. By order dated February 22, 2023, insofar as appealed from as limited by the brief, the Civil Court granted defendant’s motion to compel plaintiff to accept its late answer, finding that defendant had proffered a reasonable excuse for its delay in serving its answer.

A court may compel a plaintiff to accept a defendant’s late answer “upon such terms as may be just and upon a showing of a reasonable excuse for delay” in answering (CPLR 3012 [d]; see also Pain Mgt. Ctr. of N.J., P.C. v All Car Rent-A-Car, 57 Misc 3d 138[A], 2017 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). “The determination of what constitutes a reasonable excuse lies within the trial court’s discretion” (New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]). Under the particular circumstances presented, as well as defendant’s lack of willfulness and the absence of any prejudice to plaintiff, we find that the Civil Court did not improvidently exercise its discretion in granting defendant’s motion to compel plaintiff to accept its late answer (see CPLR 3012 [d]; Pain Mgt. Ctr. of N.J., P.C. v All Car Rent-A-Car, 2017 NY Slip Op 51310[U]).

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

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

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.

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 (Maureen A. Healy, J.), entered September 13, 2023. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $1,704.68 pursuant to a stipulation of settlement entered into on July 10, 2010, awarded plaintiff statutory no-fault interest from January 9, 2017. The appeal from the judgment brings up for review so much of an order of that court entered October 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 October 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 January 5, 2000 was commenced in 2001 and settled on July 10, 2010. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 9, 2017 pursuant to CPLR 5003-a, awarding plaintiff statutory no-fault interest from the date of the settlement at a simple rate. On January 17, 2017, plaintiff moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 9, 2017 judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. By order entered October 22, 2018, the Civil Court granted the motion and directed the clerk to recalculate [*2]the interest at a rate of 2% per month, compounded, but, sua sponte, tolled the accrual of statutory no-fault interest from the date of the settlement through January 9, 2017. A judgment was entered on September 13, 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 January 9, 2017, the date of the original judgment. 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 to the date of the original judgment (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 October 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.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 5, 2018. The order, in effect, 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 March 22, 2017.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 22, 2017 is granted.

This action by a provider to recover assigned first-party no-fault benefits for a claim submitted to defendant on or about May 4, 2000, arising from an accident that occurred on November 15, 1999 was commenced in 2002 and settled on July 31, 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on March 22, 2017 (see CPLR 5003-a) awarding statutory no-fault interest at a simple 2% per month rate. Plaintiff moved, pursuant to CPLR 5019 (a), to have the interest recalculated pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Plaintiff appeals from an order of the Civil Court which, in effect, denied its motion.

Plaintiff correctly argues that the claim involved herein is governed by the former regulations providing for compound interest because the accident occurred prior to the effective date of the current regulations, which now provide for a simple rate of interest (see 11 NYCRR [*2]65-3.9 [a], effective April 5, 2002; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 155-156 [2021]; Health Value Med., P.C. v Country Wide Ins. Co., 66 Misc 3d 127[A], 2019 NY Slip Op 52036[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, plaintiff’s motion should have been granted. We note that, contrary to the statement of the Civil Court, postjudgment interest in a no-fault action is governed by Insurance Law § 5106 and its implementing regulations, not the CPLR (see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144; Health Value Med., P.C. v Country Wide Ins., 77 Misc 3d 128[A], 2022 NY Slip Op 51137[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

Accordingly, the order is reversed and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 22, 2017 is granted.

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

The Rybak Firm, PLLC (Maksin Leyvi and Richard Rozhik of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated December 15, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.

For the reasons stated in Pain Med., PLLC, as Assignee of Van-Bochove, Nourine v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-753 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

The Rybak Firm, PLLC (Maksim Leyvi and Richard Rozhik of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J, Ammendolea of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated December 15, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.

For the reasons stated in Pain Med., PLLC, as Assignee of Van-Bochove, Nourine v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-753 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated January 6, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had [*2]made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JPC Med., P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 136[A], 2022 NY Slip Op 50562[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; JPF Med. Servs., P.C. v Nationwide Ins., 69 Misc 3d 127[A], 2020 NY Slip Op 51122[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.

Plaintiff’s cross-motion for summary judgment was properly denied, as plaintiff failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of claim form that was conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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