Optimal Well-Being Chiropractic, P.C. v MVAIC

[*1] Optimal Well-Being Chiropractic, P.C. v MVAIC 2014 NY Slip Op 51861(U) Decided on December 19, 2014 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1738 Q C

Optimal Well-Being Chiropractic, P.C. as Assignee of SHAUNTEA IRBY, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered April 20, 2012, deemed from a judgment of the same court entered July 16, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 20, 2012 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,330.56, plus, among other things, interest in the sum of $1,135.53 and attorneys' fees in the sum of $693.22.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of judgment in accordance with the decision herein.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied [*2]defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The sole issue raised on appeal involves the award of interest and attorneys' fees. Contrary to MVAIC's contention, its payment of the underlying claim was untimely. In New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429, 430 [2004]), the Appellate Division "reject[ed] the defendant's contention that the 30-day time requirement contained in [11 NYCRR 65.3.8] does not apply to it until after it has qualified' an injured party." As a result, when MVAIC ultimately paid the underlying claim, $2,330.56, on May 3, 2011, after this action had been commenced, MVAIC's payment was untimely. Consequently, the Civil Court properly awarded summary judgment to plaintiff for accrued interest, attorneys' fees, and costs and disbursements.

The judgment that was subsequently entered pursuant to the order entered April 20, 2012 awarded plaintiff, among other things, interest and attorneys' fees. The interest awarded was calculated at the rate of two percent per month from July 6, 2010 through the date of entry of the judgment, July 16, 2012. However, these dates do not comport with the dates to be used for the calculation of interest as set forth in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (12 NY3d 217 [2009]) and East Acupuncture, P.C. v Allstate Ins. Co. (61 AD3d 202 [2009]). Consequently, the amount of interest awarded is excessive. Moreover, in this case, as the amount of attorneys' fees is dependent upon the accrued interest awarded (11 NYCRR 65-4.6 [e]), the amount of attorneys' fees awarded is likewise excessive.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in accordance with this decision.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 19, 2014