GYABAAH v. RIVLAB TRANSPORTATION CORP (2019)

Defendant Rivlab Transportation Corp.'s insurer's bare offer to pay the policy limit was not a “tender” of the policy for the purposes of stopping the accrual of prejudgment interest under 11 NYCRR 60–1.1(b).  While the policy provides that the insurer will pay interest on a judgment until “we have paid, offered to pay or deposited in court the part of the judgment that is within our Limit of Insurance,” 11 NYCRR 60–1.1(b) requires the insurer to pay postjudgment interest until it has “paid or tendered or deposited in court” the part of the judgment that does not exceed the policy limit.  As the policy language is less generous to the insured than the regulation, it is deemed superseded by the regulation (see Dingle v. Prudential Prop. & Cas. Ins. Co., 85 N.Y.2d 657, 660, 628 N.Y.S.2d 15, 651 N.E.2d 883 [1995] ).  Within that framework, a bare offer to pay does not constitute a tender.  Thus, interest must be calculated from the date of entry of the order that granted summary judgment to plaintiff until the date of payment (see Love v. State of New York, 78 N.Y.2d 540, 544, 577 N.Y.S.2d 359, 583 N.E.2d 1296 [1991] [“prejudgment interest must be calculated from the date that liability is established regardless of which party is responsible for the delay”] ).