Hilda-Bloor Med., P.C. v MVAIC

[*1] Hilda-Bloor Med., P.C. v MVAIC 2013 NY Slip Op 50382(U) Decided on March 20, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 20, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570864/12.

Hilda-Bloor Medical, P.C. a/a/o Simitrio Muniz, Plaintiff-Respondent, - -

against

MVAIC, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), dated July 7, 2011, which denied its motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment in the principal sum of $6,457.50.

Per Curiam.

Appeal from order (Elizabeth A. Taylor, J.), dated July 7, 2011, deemed an appeal from the ensuing judgment (same court and Judge), entered August 11, 2011, and so considered (see CPLR 5520[c]), judgment modified by remanding the matter for recalculation of statutory interest and entry of an appropriate amended judgment; as modified, judgment affirmed, without costs.

In opposition to plaintiff's prima facie showing of entitlement to judgment as a matter of law on its complaint seeking recovery of assigned first-party no-fault benefits, defendant MVAIC failed to demonstrate any basis to dismiss the complaint or raise a triable issue. Defendant failed to submit any competent proof establishing that plaintiff's assignor was not qualified to receive no-fault benefits (see Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 229 [2011]; Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). Nor did defendant show that plaintiff was required to "exhaust its remedies" prior to commencing this action (see Omega Diagnostic Imaging, P.C. v MVAIC, 29 Misc 3d 129[A], 2010 NY Slip Op 51779[U] [App Term, 1st Dept 2010]). However, since it appears that the interest award on the overdue claims was calculated without taking into account the applicability, if any, of the tolling provision here relied upon by defendant (11 NYCRR 65-3.9[c]), we remand the matter for recalculation of the appropriate interest due plaintiff. In the event it is determined that the cited tolling provision is applicable, the result would be the accrual of interest from the commencement date of the action and not, as defendant would have it, a complete moratorium on the payment of interest (see LMK Psychological Servs. P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]; see also East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 702 [2009]). We reach no other issue. [*2]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 20, 2013