GPM CHIROPRACTIC v. MVAIC (2020)

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff commenced this action in 2002 to recover assigned first-party no-fault benefits for services allegedly rendered in 2000. The record demonstrates that issue was joined in 2003 and that plaintiff served discovery demands on March 28, 2003. By notice of motion returnable October 20, 2017, defendant moved to stay the accumulation of interest from March 13, 2003 through “the present, and up to such time as a notice of trial is validly filed with the Clerk,” vacate the notice of trial and strike the matter from the trial calendar, and preclude plaintiff from obtaining further discovery. Plaintiff appeals from so much of an order of the Civil Court entered May 29, 2018 as granted the branch of defendant's motion to toll the accrual of interest to the extent of tolling interest from April 27, 2003 “until the [n]otice of [t]rial is duly filed.”

Once a no-fault action has been commenced, statutory interest accumulates “unless the applicant unreasonably delays the ․ court proceeding” (11 NYCRR 65.15 [h], now 11 NYCRR 65-3.9 [d] ). In this case, in which no notice of trial has been properly filed, the Civil Court commenced the toll of interest when plaintiff could have moved to compel defendant to provide discovery. Plaintiff's argument on appeal, that it was defendant which had unreasonably delayed the action by failing to serve a response to plaintiff's discovery demands, is without merit (see Vitality Chiropractic, P.C. v Countrywide Ins., 59 Misc 3d 150[A], 2018 NY Slip Op 50838[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] ).

Accordingly, the order, insofar as appealed from, is affirmed.

WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.