Queens Neurology, P.C. v. Kemper Ins. Co.

Queens Neurology, P.C. v Kemper Ins. Co. (2022 NY Slip Op 50356(U)) [*1] Queens Neurology, P.C. v Kemper Ins. Co. 2022 NY Slip Op 50356(U) [75 Misc 3d 126(A)] Decided on April 28, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 28, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ 2020-990 N C Queens Neurology, P.C., as Assignee of Nekisha O'Madre, Appellant, against Kemper Ins. Co., Respondent. Gary Tsirelman, P.C. (Gary Tsirelman of counsel), for appellant. Barry, McTiernan & Moore, for respondent (no brief filed). Appeal, on the ground of inadequacy, from a judgment of the District Court of Nassau County, Third District (Robert E. Pipia, J.), entered September 13, 2019. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $1,972.80 following an inquest, awarded plaintiff statutory no-fault interest accruing from the date the notice of trial was filed. ORDERED that the judgment, insofar as appealed from, is affirmed, without costs. Plaintiff commenced this action in 2003 to recover $1,972.80 in assigned first-party no-fault benefits, alleging that a claim "was submitted to the defendant on or about 7/18/00." In 2019, following an arbitration hearing, at which defendant failed to appear, plaintiff was awarded the principal sum of $638.82, plus statutory no-fault interest accruing from the date the notice of trial was filed in 2015. Thereafter, plaintiff demanded a trial de novo, at which defendant failed to appear. An inquest was subsequently held, at which defendant failed to appear, and plaintiff was awarded the principal sum of $1,972.80, plus interest accruing from the date the notice of trial was filed. On appeal, plaintiff contends that since defendant failed to deny its claim, the District Court should have awarded interest accruing from 30 days after the date the claim was submitted to defendant, and that the District Court improperly tolled the accrual of interest until the date the notice of trial was filed. In Hempstead Gen. Hosp. v Insurance Co. of N. Am. (208 AD2d 501, 501 [1994]), the Appellate Division, Second Department, held that where a claim is not paid within 30 days, and is never actually denied, the claim is overdue within the meaning of Insurance Law § 5106 (a) and interest on the claim will commence "30 days after the claim was presented to the defendant for payment until the date the claim was or is paid" (see Corona Hgts. Med., P.C. v Liberty Mut. Ins. Co., 32 Misc 3d 8, 10 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). While plaintiff argues on appeal that the claim had not been timely denied, this assertion was made solely by plaintiff's attorney at the inquest and contradicts what is stated in the written arbitrator's award. Here, plaintiff failed to establish that interest should have started to accrue any earlier than the commencement of the action (see 11 NYCRR 65-3.9 [c]). In addition, a review of the record indicates that the District Court properly tolled the accrual of interest until the date of the notice of trial based upon its implicit finding that plaintiff unreasonably delayed the proceedings (see 11 NYCRR 65-3.9 [d]). Consequently, the District Court properly declined to award interest from the date of the submission of the claim. Accordingly, the judgment, insofar as appealed from, is affirmed. GARGUILO, P.J., DRISCOLL and VOUTSINAS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: April 28, 2022