NCT DIAGNOSTICS INC v. COUNTRYWIDE INSURANCE COMPANY (2022)

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

This action by a provider to recover assigned first-party no-fault benefits was commenced in 2005 and settled in April 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 30, 2017 pursuant to CPLR 5003-a, awarding plaintiff statutory no-fault interest from the date of the settlement at a simple rate. In February 2017, plaintiff moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 30, 2017 judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. By order entered February 20, 2018, the Civil Court granted the motion, directed the clerk to recalculate the interest at a rate of 2% per month, compounded, but, sua sponte, tolled the accrual of statutory no-fault interest through February 22, 2017, the date plaintiff made the instant motion. A judgment was entered on October 13, 2021, accordingly.

Plaintiff correctly argues that the Civil Court erred in tolling the statutory no-fault interest from the date of the settlement to the date of plaintiff's motion. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal quotation marks omitted]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Therefore, the Civil Court erred in tolling the accrual of interest (see Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918[U]).

Accordingly, the judgment, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

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