December 13, 2019

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

Headnote

The relevant facts considered by the court were that a provider sought to recover assigned first-party no-fault benefits that were settled in April 2008, but which the defendant did not pay. A judgment was subsequently entered on January 30, 2017, and the plaintiff moved to correct the judgment by recalculating the interest. 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. The main issue decided by the court was whether the portion of the order which tolled the accrual of interest was appealable, as it did not address a demand for relief made on notice and was, therefore, sua sponte. The holding of the case was that 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, and was not appealable as of right, so the appeal was dismissed.

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