Gordon v. Chubb Group of Insurance

Judgment, Supreme Court, New York County (O. Peter 483 Sherwood, J.), entered August 24, 2010, after a nonjury trial, inter alia, awarding plaintiff damages for medical liens and out-of-pocket expenses and calculating interest from the commencement of the action at a simple rather than compound rate, unanimously affirmed, without costs. The trial court found plaintiff not credible on the issue of mailing of the claim in January 1999, and since there is no documentary proof of such a mailing, there exists no basis to disturb the court’s finding that the claim was not sent before June 1999 (see generally 300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 54 [1st Dept 1997]). The various elements of lost income were properly denied as speculative, given the conflicting evidence as to plaintiff’s income, and the lack of any medical testimony linking his disability to his inability to work (see Razzaque v Krakow Taxi, 238 AD2d 161, 162 [1st Dept 1997]). Because defendant’s denial of coverage was timely, even if improper, the trial court correctly awarded interest from commencement of the action, at the rate of 2% simple interest per month (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [2003]). We have considered plaintiffs remaining contentions and find them unavailing. Concur — Mazzarelli, J.E, Friedman, Renwick, DeGrasse and Gische, JJ.