|V.S. Med. Servs., P.C. v Travelers Ins. Co.|
|2015 NY Slip Op 51760(U) [49 Misc 3d 152(A)]|
|Decided on December 1, 2015|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered August 11, 2011. The judgment, entered pursuant to a decision of the same court dated May 3, 2011, after a nonjury trial, awarded plaintiff the principal sum of $10,859.64 plus statutory interest, with the exception of the period from February 13, 2004 through March 22, 2006, during which time the accrual of statutory interest was stayed pursuant to the parties' stipulation.
ORDERED that, on the court's own motion, the notice of appeal from the decision dated May 3, 2011 is deemed a premature notice of appeal from the judgment entered August 11, 2011 (see CPLR 5520 [c]); and it is further,
ORDERED that the judgment is modified by providing that the accrual of statutory interest is further stayed to February 27, 2009; as so modified, the judgment is affirmed, without costs, and the matter is remitted to the Civil Court for a recalculation of the interest in accordance herewith and the entry of an appropriate amended judgment thereafter.
Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical services rendered. In a decision after a nonjury trial, the Civil Court awarded plaintiff the principal sum of $10,859.64 plus statutory interest, except for the period from February 13, 2004 to March 22, 2006, during which time the accrual of interest had been stayed pursuant to the parties' prior stipulation which had vacated the dismissal of the action. After defendant filed its notice of appeal from the decision, a judgment was subsequently entered. We deem the notice of appeal from the decision a premature notice of appeal from the judgment entered August 11, 2011 (see CPLR 5520 [c]). On appeal, defendant challenges plaintiff's proof of mailing of the claims and whether plaintiff established that the claims remained unpaid at the time of trial. Defendant further argues that, due to plaintiff's inaction after the dismissal of the action had been vacated, the accrual of statutory interest should be further stayed until February 27, 2009, the date plaintiff resumed prosecution of the action by filing a notice of trial.
In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and [*2]demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 ; Hamilton v Blackwood, 85 AD3d 1116 ; Zeltser v Sacerdote, 52 AD3d 824, 826 ).
As plaintiff's bills and proof of mailing were admitted into evidence through the testimony of its owner, who testified that the bills had not been paid, plaintiff sustained its burden of proving its prima facie case at trial. Defendant rested its case without offering a defense. Consequently, the Civil Court properly granted judgment to plaintiff (see Peace of Mind, Social Work, P.C. v Travelers Aetna Prop. Cas. Corp., 43 Misc 3d 127[A], 2014 NY Slip Op 50475[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).
With respect to the award of statutory interest, the record shows that plaintiff did nothing to prosecute this action for approximately three years after the parties had stipulated to vacate the dismissal of the action. Plaintiff should not be rewarded for its years of inaction by receiving a windfall of interest (see 11 NYCRR 65-3.9 [d]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term, 2d, 11th & 13th Jud Dists 2014]).
Accordingly, the judgment is modified by providing that the accrual of statutory interest is further stayed to February 27, 2009, and the matter is remitted to the Civil Court for a recalculation of the interest in accordance herewith and the entry of an appropriate amended judgment thereafter.
Pesce, P.J., Weston and Aliotta, JJ., concur.