Defendant, as limited by its briefs, appeals from that portion of a judgment of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered December 10, 2008, which, upon a prior order granting plaintiffs summary judgment in the principal sum of $16,536.36, awarded plaintiffs $151,203.43 in statutory interest on the award.

Per Curiam.

Judgment (Debra Rose Samuels, J.), entered December 10, 2008, modified by remanding the matter for recalculation of statutory interest and entry of an appropriate amended judgment; as modified, judgment affirmed, without costs.

In view of the unchallenged May 2006 order granting summary judgment to plaintiffs on their claims for first-party no-fault benefits, plaintiffs are entitled to statutory interest from the date the claims became overdue (see Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1995]; see also Insurance Department Regulations [11 NYCRR] § 65-3.9[a]). However, since it appears that interest on the overdue claims was calculated without taking into account the applicability, if any, of the tolling provisions of Insurance Law § 5106(a) (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]), we remand the matter for recalculation of the appropriate interest due plaintiffs on these claims.

Nor is defendant precluded from prosecuting this appeal by reason of its withdrawal of its prior appeal from the underlying order granting summary judgment (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 755-756 [1999]; Weksler v Weksler, 81 AD3d 401, 403 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: November 20, 2012