TRANS MEDICAL SUPPLY INC v. COUNTRY WIDE INSURANCE COMPANY (2020)

ORDERED that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled by a two-attorney stipulation dated June 16, 2003. Defendant did not pay the settlement amount, and a judgment was entered on January 12, 2017 pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), in effect, to correct the January 12, 2017 judgment by recalculating the interest. By order entered February 20, 2018, the Civil Court granted the motion, but, sua sponte, stayed the accrual of statutory no-fault interest from June 16, 2003 through February 22, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual of interest.

The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v. Meagher, 100 N.Y.2d 333, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003]; Active Care Med. Supply Corp. v. Delos Ins. Co., 55 Misc. 3d 144(A), 2017 N.Y. Slip Op. 50650(U), 2017 WL 2173124 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017]), and we decline to grant leave to appeal. Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 N.Y.2d at 335, 763 N.Y.S.2d 522, 794 N.E.2d 664; see Active Care Med. Supply Corp., 55 Misc. 3d 144(A), 2017 N.Y. Slip Op. 50650(U), 2017 WL 2173124; see also CCA 1702 [a] [3]), but plaintiff failed to make such a motion.

With respect to the position of the dissenting justice, we submit that deeming the appeal as something other than an improper appeal without permission should not be done routinely, particularly as there have been numerous such appeals made without permission in cases similar to this.

Accordingly, the appeal is dismissed

This is yet another case in which this court has had to address the Civil Court's sua sponte stay of the accrual of statutory no-fault interest. While it may be expedient to dismiss the appeal, in my opinion, plaintiff's notice of appeal should be treated as a motion for leave to appeal and such leave granted. Alternatively, plaintiff's motion may be treated as a motion to resettle the judgment, and the court's order, which materially changed the prior judgment, is appealable (see Weksler v. Weksler, 81 A.D.3d 401 [918 N.Y.S.2d 11] [2011]; Gormel v. Prudential Ins. Co. of Am. [Inc.], 151 A.D.2d 1048 [544 N.Y.S.2d 511] [1989]). Upon granting leave, I would reverse so much of the order as stayed the accrual of no-fault statutory interest.

This action by a provider to recover assigned first-party no-fault benefits was settled in June 2003. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 12, 2017, pursuant to CPLR 5003-a. Plaintiff appeals from so much of an order of the Civil Court entered February 20, 2018 as sua sponte stayed the accrual of no-fault statutory interest from June 16, 2003 through February 22, 2017.

The Civil Court erred in staying interest from the date of the settlement of the action to the date when the motion was made. 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” (B.Z. Chiropractic, P.C. v. Allstate Ins. Co., 56 Misc. 3d 139(A), 2017 N.Y. Slip Op. 51091(U), *2 [2017 WL 3896823] [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017]; 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 A.D.2d 473, 474 [675 N.Y.S.2d 138] [1998]; Juracka v. Ferrara, 120 A.D.2d 822 [501 N.Y.S.2d 936] [1986]; Craniofacial Pain Mgt. v. Allstate Ins. Co., 61 Misc. 3d 155(A), 2018 N.Y. Slip Op. 51825(U) [2018 WL 6519888] [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2018]; B.Z. Chiropractic, P.C., 56 Misc. 3d 139(A), 2017 N.Y. Slip Op. 51091(U) [2017 WL 3896823]). Therefore, the Civil Court erred in tolling the accrual of interest (see Craniofacial Pain Mgt., 61 Misc. 3d 155(A), 2018 N.Y. Slip Op. 51825(U) [2018 WL 6519888]; B.Z. Chiropractic, P.C., 56 Misc. 3d 139(A), 2017 N.Y. Slip Op. 51091(U) [2017 WL 3896823]).

Accordingly, the order, insofar as appealed from, should be reversed, and so much of the order as stayed the accrual of statutory no-fault interest from June 16, 2003 through February 22, 2017 should be vacated.

ALIOTTA and SIEGAL, JJ., concur.