Opinion
2014-03-5
Dr. Lev AMINOV as Assignee of Lucy Liu, Appellant, v. COUNTRY WIDE INSURANCE COMPANY, Respondent.
Law Office of Jeff Henle, P.C., New York City (Jeff Henley of counsel), for appellant. Jaffe & Koumourdas, LLP, New York City (Jean H. Kang of counsel), for respondent.
Law Office of Jeff Henle, P.C., New York City (Jeff Henley of counsel), for appellant. Jaffe & Koumourdas, LLP, New York City (Jean H. Kang of counsel), for respondent.
Present: WESTON, J.P., ALIOTTA and SOLOMON, JJ.
ORDERED that, on the court's own motion, the notice of appeal from the amended decision dated September 15, 2010 is deemed a premature notice of appeal from so much of the judgment entered January 26, 2012 as awarded statutory prejudgment interest from August 7, 2008 ( seeCPLR 5520[c] ); and it is further,
ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.
Plaintiff commenced this action to recover assigned first-party no-fault benefits in 2001, based upon an accident that had occurred in 1998. It is undisputed that for the next seven years, no action was taken by either party. On August 7, 2008, plaintiff filed a notice of trial. A nonjury trial was subsequently held, after which the Civil Court found in favor of plaintiff. However, based on plaintiff's delay of the case, the Civil Court held that statutory prejudgment interest would accumulate from the date plaintiff filed its notice of trial, on August 7, 2008. Plaintiff filed a notice of appeal from that decision, limited to the Civil Court's decision to award interest from August 7, 2008. A judgment was subsequently entered, including interest commencing as of August 7, 2008 at a simple, not compound, rate. We deem the appeal to have been taken from so much of the judgment as awarded interest from August 7, 2008.
First, contrary to plaintiff's argument on appeal, defendant did prove the timely mailing of the denial. Where, as here, a provider does not commence the action within 30 days of receipt of the denial, the Insurance Department Regulations provide that statutory prejudgment interest ( seeInsurance Law § 5106[a] ) begins to accumulate when the action is commenced ( seeInsurance Department Regulations [11 NYCRR] § 65–3.9[c] ), “ unless the applicant unreasonably delays the ... court proceeding ” (Insurance Department Regulations [11 NYCRR] § 65–3.9[d] [emphasis added] ). In this case, plaintiff took no action for seven years. Plaintiff's argument that defendant should be required to pay interest for that period because defendant could have attempted to move the case forward lacks merit. It is plaintiff who brought this action and plaintiff should not be rewarded for its years of inaction by receiving a windfall of interest ( see Arzu v. NYC Tr. Auth., 35 Misc.3d 210, 936 N.Y.S.2d 877 [Civ.Ct., Kings County 2012];compare Igor Shtarkman Neurologist, P.C. v. Allstate Ins. Co., 191 Misc.2d 76, 740 N.Y.S.2d 809 [Nassau Dist.Ct.2002] ). Thus, in our opinion, the Civil Court properly had that the interest in this case should be awarded from August 7, 2008.
On appeal, plaintiff also contends that interest should have been calculated at a compound, not simple, rate. However, the decision from which plaintiff appealed did not specify whether the interest awarded should be simple or compound, and the award of simple, rather than compound, interest is found only in the judgment, which was entered subsequent to the filing of the notice of appeal. Moreover, the notice of appeal limited the appeal to the court's determination regarding the date on which interest would begin to accumulate. Therefore, the issue of whether the interest should be calculated at a simple or compound rate is not reviewable on this appeal. As this issue was not litigated below and as there has been no prior judicial determination of this question, plaintiff, if he be so advised, may move, pursuant to CPLR 5019(a), to seek a correction of the interest in the judgment ( see Kiker v. Nassau County, 85 N.Y.2d 879, 881, 626 N.Y.S.2d 55, 649 N.E.2d 1199 [1995];see also former Insurance Department Regulations [11 NYCRR] § 65.15[h][1]; Belt Parkway Imaging, P.C. v. State Wide Ins. Co., 30 Misc.3d 127[A], 2010 N.Y. Slip Op. 52229[U], 2010 WL 5186680 [App.Term., 2d, 11th & 13th Jud.Dists.2010]; Ops General Counsel N.Y. Ins. Dept. No. 02–10–22 [Oct.2002] ).
Accordingly, the judgment, insofar as appealed from, is affirmed.