Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

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 17, 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 17, 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 February 9, 1999, arising from an accident that occurred on September 24, 1998, was settled on July 31, 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on March 17, 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 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]). 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 [*2]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).

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 17, 2017 is granted.

ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.

Marshall & Marshall, PLLC (Frank D’Esposito and David Gierasch of counsel), for appellant. Dash Law Firm, P.C. (James Errera of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated April 6, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC Insurance Company) appeals from an order of the District Court dated July 1, 2021 denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

Defendant established its prima facie entitlement to summary judgment by submitting evidence demonstrating that it timely denied plaintiff’s claim submitted in January 2018 for no-fault benefits, on the ground of untimeliness, as the claim was submitted more than 45 days after the date services were rendered (see 11 NYCRR 65-1.1) and that its denial informed plaintiff that it could excuse the delay if plaintiff provided “reasonable justification” for the late [*2]submission (see 11 NYCRR 65-3.3 [e]; Stand-Up MRI of the Bronx, P.C. v MVAIC Ins. Co., 76 Misc 3d 128[A], 2022 NY Slip Op 50789[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; Mount Sinai Hosp. of Queens v Country Wide Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50780[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; see also Schottenstein Pain & Neuro, PLLC v MVAIC, 72 Misc 3d 131[A], 2021 NY Slip Op 50643[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

In opposition, plaintiff failed to raise a triable issue of fact as to whether it provided defendant with a reasonable justification for its untimely submission of the claim, as plaintiff failed to explain why, after learning that there was no insurance covering the accident, it first submitted the claim to the assignor’s personal health insurer instead of MVAIC, and why it took months before it first purportedly sent the claim to MVAIC (see Stand-Up MRI of the Bronx, P.C., 2022 NY Slip Op 50789[U]; Excel Surgery Ctr., LLC v MVAIC, 68 Misc 3d 134[A], 2020 NY Slip Op 51016[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Mount Sinai Hosp. of Queens, 2014 NY Slip Op 50780[U]; see also Schottenstein Pain & Neuro, PLLC, 2021 NY Slip Op 50643[U]).

Plaintiff also failed to raise a triable issue of fact as to whether it actually first submitted the claim to MVAIC on October 17, 2017, the basis for plaintiff’s argument that defendant’s February 5, 2018 denial was untimely. To establish this mailing, plaintiff neither presented an affidavit by one with personal knowledge of the mailing nor provided sufficient practices and procedures of mailing, but rather relied on a certificate of mailing, which, under the circumstances presented, was insufficient to fill in the gaps in plaintiff’s proof of mailing.

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

GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur.

Law Office of Aloy O. Ibuzor (Janice A. Robinson of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered September 6, 2019. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint on the ground that the action was premature as plaintiff had failed to respond to defendant’s timely requests for additional verification. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered September 6, 2019, insofar as appealed from as limited by the brief, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted plaintiff’s cross motion.

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that it had not received the requested verification. However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to raise an issue of fact as to whether the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). As a result, there is an issue of fact as to whether plaintiff’s action is premature.

Accordingly, the order, insofar as appealed from, is modified by providing that plaintiff’s cross motion for summary judgment is denied.

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

Decided on September 23, 2022

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

Decided on September 23, 2022

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

Robyn M. Brilliant, P.C. (Tori Y. Buttrum 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 (Ira R. Greenberg, J.), entered December 3, 2019. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff’s assignor failed to appear for scheduled independent medical examinations.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff’s assignor failed to appear for scheduled IMEs.

Contrary to the determination of the Civil Court, defendant demonstrated that, before it [*2]had received the claim at issue, it properly scheduled IMEs of plaintiff’s assignor, and that the assignor failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant also demonstrated that it timely denied the claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), based upon the assignor’s failure to appear for the IMEs. An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722).

Plaintiff’s remaining argument is not properly before this court as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 25, 2019. The order, insofar as appealed from, denied defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendants’ motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendants appeal from so much of an order of the Civil Court as denied defendants’ motion which had sought summary judgment dismissing the complaint on the ground, among others, that the action was barred by the statute of limitations.

In support of a cross motion for summary judgment, plaintiff submitted an affidavit by plaintiff’s owner who asserted that the subject claim forms were submitted to defendants on or before October 20, 2007, that the claims had not been paid, and that statutory interest was to be computed as of 30 days after each claim’s submission. Consequently, the payment due date, as implicitly alleged by plaintiff in its complaint and in the affidavit by plaintiff’s owner, must be deemed to have been in November 2007, that is, 30 days after defendants’ receipt of the claims (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; Shtarkman v MVAIC, 20 Misc 3d 132[A], [*2]2008 NY Slip Op 51447[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Plaintiff did not commence this action until 2018, after the six-year statute of limitations for contract actions, which is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), had expired. As plaintiff raised no issue of fact as to the timeliness of the action, defendants’ motion to dismiss based on the statute of limitations should have been granted (see A.M. Med., P.C. v Continental Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50389[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is reversed and defendants’ motion for summary judgment dismissing the complaint is granted.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 2, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through tenth causes of action are denied, and the branch of plaintiff’s motion seeking summary judgment on the first cause of action is granted; 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 denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Defendant denied the claim underlying the first cause of action on the ground that written instructions for physical therapy should have been included in plaintiff’s assignor’s medical records for services billed under CPT code 97001 of the workers’ compensation fee schedule. However, as plaintiff argues, defendant did not request any additional verification from plaintiff seeking the information it felt it required in order to review this claim. Consequently, defendant was not entitled to summary judgment dismissing the first cause of action, and, under the circumstances presented, the branch of plaintiff’s motion seeking summary judgment on that [*2]cause of action should have been granted (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51452[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 175 AD3d 455 [2019]).

With respect to the second cause of action, contrary to plaintiff’s contention, plaintiff’s conclusory assertion that it never received the check defendant had mailed to pay this claim was insufficient to raise a triable issue of fact (see Matter of Rodriguez v Wing, 251 AD2d 335 [1998]).

With respect to the third through tenth causes of action, plaintiff correctly argues that defendant failed to show, as a matter of law, that the independent medical examination (IME) scheduling letters were properly addressed and generated pursuant to the standard practices and procedures of its IME scheduling vendor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Moreover, the affirmation from the doctor who was scheduled to perform the IMEs did not establish that he possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs. In addition, defendant failed to establish, as a matter of law, that the amounts charged in these claims were improperly billed or in excess of the amounts permitted by the workers’ compensation fee schedule. Therefore, defendant failed to establish its entitlement, as a matter of law, to summary judgment dismissing the third through tenth causes of action (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 128[A], 2016 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

However, plaintiff failed to establish its prima facie entitlement to summary judgment upon the third through tenth causes of action, as plaintiff did not establish either that defendant failed to timely deny the claims (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant issued timely denial of claim forms that were 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]). Thus, the branches of plaintiff’s motion seeking summary judgment on these causes of action were properly denied.

Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through tenth causes of action are denied, and the branch of plaintiff’s motion seeking summary judgment on the first cause of action is granted.

ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas A. Torto, Esq. (Thomas Torto and Jason Levine of counsel), for respondent.

Appeals from orders of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered February 27, 2019 and April 14, 2020. The February 27, 2019 order, insofar as appealed from as limited by the brief, sua sponte tolled the accrual of all no-fault statutory interest. The April 14, 2020 order, insofar as appealed from as limited by the brief, denied the branch of plaintiff’s motion seeking to vacate and/or modify so much of the February 27, 2019 order as was made sua sponte.

ORDERED that the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the appeal from so much of the February 27, 2019 order as sua sponte tolled the accrual of all no-fault statutory interest is dismissed as no appeal as of right lies from an order made sua sponte; and it is further,

ORDERED that the April 14, 2020 order, insofar as appealed from, is modified by providing that no-fault statutory interest is tolled from June 27, 1997 until April 5, 2018; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In 1995, plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to his assignor for injuries allegedly sustained in a motor vehicle accident in August 1994. Defendant appeared and answered. After defendant failed to appear for trial in May 1997, an inquest was held in June 1997, following which a written decision dated June 27, [*2]1997 was issued awarding plaintiff judgment in the sum of $1,480 with interest from April 21, 1995. On April 5, 2018, plaintiff moved for “an Order compelling the clerk to enter judgment based upon the inquest held in this matter.” Defendant cross-moved to dismiss the action, arguing that plaintiff had failed to submit a proposed judgment within 60 days pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.33 (a). By order entered February 27, 2019, the Civil Court found that all no-fault statutory interest should be tolled because plaintiff had unreasonably delayed in seeking to enter judgment (see former 11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]) and directed the clerk “to enter judgment . . . for the Plaintiff in the amount of $1,480.00 with no prejudgment interest,” and denied defendant’s cross motion. Defendant has since paid the sum of $1,480.

Thereafter, plaintiff moved for, among other things, an order “vacating and/or modifying that portion of the Court’s [February 27, 2019] order . . . that is sua sponte.” Defendant opposed the motion. By order entered April 14, 2020, the Civil Court denied the branch of plaintiff’s motion seeking to vacate and/or modify the sua sponte portion of the February 27th order, stating that plaintiff would not be awarded any prejudgment interest, and finding that no portion of the February 27th order was made sua sponte.

As limited by his brief, plaintiff appeals from so much of the February 27, 2019 order as sua sponte tolled the accrual of all no-fault statutory interest and from so much of the April 14, 2020 order as denied the branch of plaintiff’s motion seeking to vacate and/or modify the portion of the February 27, 2019 order as was made sua sponte. The appeal from so much of the February 27, 2019 order as sua sponte tolled the no-fault statutory interest pursuant to 11 NYCRR 65-3.9 (d) is dismissed as it did not address a demand for relief made on notice and, therefore, is not appealable as of right (see CCA 1702 [a]; Sholes v Meagher, 100 NY2d 333 [2003]; Biotech Surgical Supply, Inc. v Country Wide Ins. Co., 66 Misc 3d 135[A], 2019 NY Slip Op 52143[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

As to the April 14, 2020 order, we agree with the Civil Court’s determination pursuant to former 11 NYCRR 65.15 (h) (now 11 NYCRR 65-3.9 [d]) that plaintiff unreasonably waited more than 20 years before moving to have a judgment entered upon the decision issued after the inquest. The no-fault regulations provide that, “[i]f an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (former 11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]). A no-fault plaintiff “should not be rewarded for his years of inaction by receiving a windfall of interest” (Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Contrary to plaintiff’s argument, this case is not analogous to cases in which we have held that interest should not be tolled between a settlement and the entry of a judgment upon the settlement (see e.g. 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]). A settlement is the resolution of a case to which both parties have agreed, and the entry of a judgment is only permitted where a settling defendant fails to do what it has promised to do: pay the agreed-upon sum within 21 days of tender of the required paperwork (see CPLR 5003-a). In contrast, a case that goes to inquest or trial concludes in a judgment, and plaintiff should not be awarded a windfall of punitive interest because he failed to enter a judgment for more than 20 years after the inquest. Thus, so much of the February 27, 2019 order as tolled the no-fault [*3]statutory interest from June 27, 1997, the date of the decision after inquest, until April 5, 2018, when plaintiff moved to enter a judgment based upon that decision, was proper and the Civil Court correctly declined to vacate that part of the order.

However, the Civil Court should have vacated so much of the February 27, 2019 order as declined to award interest from April 21, 1995 until June 27, 1997, which interest was awarded by the June 27, 1997 decision, as there has been no finding that plaintiff unreasonably delayed this case during that period. We note that since the subject accident took place in 1994, no-fault statutory interest should be calculated at a compounded rate (see former 11 NYCRR 65.15 [h] [1]; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144 [2021]; 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]).

Plaintiff’s remaining arguments regarding interest lack merit.

Accordingly, the April 14, 2020 order, insofar as appealed from, is modified by providing that no-fault statutory interest is tolled from June 27, 1997 until April 5, 2018.

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

Decided on September 9, 2022

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