Craniofacial Pain Mgt. v Allstate Ins. Co.

Dec 7, 2018
2017-860 Q C
Versions:

Glinkenhouse, Floumanhaft & Queen (Alan Queen of counsel), for appellant-respondent. Peter C. Merani, P.C. (Eric M. Wahrburg and Edward Tobin of counsel), for respondent-appellant.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O‘Connor, J.), entered March 8, 2017. The order, insofar as appealed from by plaintiff, granted the branch of defendant‘s motion seeking to toll the accrual of all postjudgment interest to the extent of tolling the interest from May 14, 2004 through February 8, 2008. The order, insofar as cross-appealed from by defendant, denied the branch of defendant‘s motion seeking to direct the clerk to enter a satisfaction of judgment and granted the branch of its motion seeking to toll the accrual of all postjudgment interest only to the extent of tolling the accrual of interest from May 14, 2004 through February 8, 2008.

ORDERED that the order is modified by providing that the branch of defendant‘s motion seeking to toll the accrual of all postjudgment interest is denied and by vacating so much thereof as denied the branch of defendant‘s motion seeking an order directing the clerk to enter a satisfaction of judgment; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of the branch of defendant‘s motion seeking an order directing the clerk to enter a satisfaction of judgment in accordance with this decision and order.

Following a nonjury trial in 2000 of this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded a judgment to plaintiff in the principal sum of $4,387, together with statutory interest, costs and fees. A judgment in the sum of $9,512.69 was entered on May 14, 2004 and was served with notice of entry upon defense counsel on June 8, 2008. Defendant acknowledged the receipt of a marshal‘s notice of levy and sale on September 2, 2016. The notice advised defendant that defendant owed plaintiff the amount of the judgment, together with $376,324.80 in postjudgment interest. It is undisputed that, in October 2016, defendant issued a check to the marshal in the amount of $9,988.32. Several months later, defendant moved for, among other things, an order directing the clerk to enter a satisfaction of judgment; “modify[ing]” the judgment; and staying the accrual of postjudgment interest on the grounds that defendant had paid the “face value of the judgment” and that plaintiff is not entitled to postjudgment interest because plaintiff‘s unreasonable delay had caused the interest to accrue. Plaintiff opposed the motion, arguing that interest accrues until a claim is paid. By order entered March 8, 2017, the Civil Court granted defendant‘s motion to the extent of staying the accrual of interest from May 14, 2004, the date that the judgment was entered, through February 8, 2008, the date that plaintiff served a copy of the judgment with notice of entry. This appeal and cross appeal ensued.

A money judgment bears interest from the date of its entry (see CPLR 5003), and, generally, the interest accrues until the judgment is paid (see Matter of Matra Bldg. Corp. v Kucker, 19 AD3d 496 [2005]; Martin v Tafflock, 166 AD2d 635 [1990]). “Postjudgment interest is awarded as a penalty for the delayed payment of a judgment” (ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; see B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Contrary to defendant‘s assertion, there is no evidence of actions or conduct by plaintiff which prevented defendant from paying the judgment (see Bankers Trust Co. of Cal., N.A. v Brunson, 40 AD3d 672, 672 [2007]; ERHAL Holding Corp., 252 AD2d at 474; cf. Danielowich v PBL Dev., 292 AD2d 414 [2002]). Consequently, the Civil Court erred in tolling the accrual of postjudgment interest for the period in question.

We remit the matter to the Civil Court for a new determination of the branch of defendant‘s motion seeking to direct the entry of a satisfaction of judgment. The amount of a partial satisfaction, if any, should be calculated by determining the total payments received as of a certain date, and deducting from that sum the marshal‘s fee, the interest accrued to that date, and the poundage fee due to the marshal upon the collection of such sum (see Ifudu v Ross, 60 Misc 3d 140[A], 2018 NY Slip Op 51199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In this regard, we note that plaintiff is entitled to receive only simple interest at the statutory rate of nine percent per year from the date of the entry of the judgment through the date of the payment of the judgment (see CPLR 5004; B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]), and that the marshal‘s notice of levy and sale served upon defendant inexplicably stated interest in the amount of $376,324.80. We further note that defendant demonstrated, by showing the submission to a New York City marshal of a check which the marshal endorsed, that defendant had paid the amount of $9,988.32 (see CPLR 5021 [a]).

Accordingly, the order is modified by providing that the branch of defendant‘s motion seeking to toll the accrual of all postjudgment interest is denied and by vacating so much thereof as denied the branch of defendant‘s motion seeking an order directing the clerk to enter a satisfaction of judgment. The matter is remitted to the Civil Court for a new determination of the branch of defendant‘s motion seeking an order directing the clerk to enter a satisfaction of judgment.

WESTON, J.P., PESCE and SIEGAL, JJ., concur.

Paul Kenny

Chief Clerk

Decision Date: December 07, 2018