December 13, 2019

Metro Med. Diagnostics, P.C. v Country Wide Ins. Co. (2019 NY Slip Op 52037(U))

Headnote

The court considered the fact that the plaintiff, Metro Medical Diagnostics, P.C., as assignee of Miroslaw Bazan, filed a lawsuit to recover assigned first-party no-fault benefits that were settled in July 2010. Defendant, Country Wide Insurance Company, did not pay the settlement amount, and a judgment was subsequently entered on January 31, 2017. Plaintiff then moved to correct the judgment by recalculating the interest, and the Civil Court granted the motion but also stayed the accrual of statutory no-fault interest from July 26, 2010 through February 14, 2017. The main issue decided was whether the portion of the order which tolled the accrual of interest was appealable as of right, and the holding of the court was that it was not appealable as of right because it was sua sponte. Therefore, the court dismissed the appeal.

Reported in New York Official Reports at Metro Med. Diagnostics, P.C. v Country Wide Ins. Co. (2019 NY Slip Op 52037(U))

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

Metro Medical Diagnostics, P.C., as Assignee of Miroslaw Bazan, Appellant,
against
Country Wide 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 22, 2018. The order, insofar as appealed from, sua sponte stayed the accrual of no-fault statutory interest from July 26, 2010 through February 14, 2017.

ORDERED that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled in July 2010. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 31, 2017 pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 31, 2017 judgment by recalculating the interest. By order entered February 22, 2018, the Civil Court granted the motion but, sua sponte, stayed the accrual of statutory no-fault interest from July 26, 2010 through February 14, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual 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 [*2]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.

Accordingly, the appeal is dismissed.

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

ENTER:

Paul Kenny

Chief Clerk
Decision Date: December 13, 2019