[*1]
Eagle Surgical Supply, Inc. v Country-Wide Ins. Co.
2018 NY Slip Op 50157(U)
Decided on February 2, 2018
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2307 K C

Eagle Surgical Supply, Inc., as Assignee of Warlin Mordan, Respondent,

against

Country-Wide Insurance Company, Appellant.


Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Korsunskiy Legal Group, P.C. (Henry Guindi, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 21, 2015. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff no-fault statutory prejudgment interest from January 8, 2007.

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on January 8, 2007. After a nonjury trial held on November 3, 2014, the Civil Court found in favor of plaintiff and awarded it the principal sum of $1,131.68. Defendant made an oral application to the court to toll the accrual of no-fault statutory prejudgement interest based upon plaintiff's delay in the prosecution of the action. In the alternative, defendant sought to submit a posttrial brief on the tolling issue. The Civil Court denied defendant's requests, and a judgment was entered on May 21, 2015 awarding plaintiff the principal sum of $1,131.68 and, among other things, no-fault statutory prejudgment interest from January 8, 2007. As limited by its brief, defendant appeals from so much of the judgment as awarded plaintiff no-fault statutory prejudgment interest from January 8, 2007.

No-fault statutory prejudgment interest (see Insurance Law § 5106 [a]) begins to accrue when the action is commenced (see 11 NYCRR 65-3.9 [c]), "unless the applicant unreasonably delays the . . . court proceeding" (11 NYCRR 65-3.9 [d]). While a significant amount of time elapsed between the commencement of this action and the trial, defendant did not adequately demonstrate to the Civil Court, and there was nothing in the record to indicate, the reason for the protracted delay or that it was plaintiff which had "unreasonably delay[ed]" the action (cf. Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2015]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, as there was no basis for the Civil Court to toll the accrual of no-fault statutory prejudgment interest, the judgment, insofar as appealed from, is affirmed.

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.


ENTER:


Paul Kenny


Chief Clerk


Decision Date: February 02, 2018