Plaintiff’s 20-Year Delay in Enforcing Judgment Does Not Toll Interest
Berenblit v Aetna Cas. & Sur. Co.
In this no-fault suit, plaintiff obtained a judgment on default in 1998. But it was not until 2017 that plaintiff sent the judgment to the marshal for enforcement. When defendant was served by the marshal, it moved to vacate the judgment. Civil Court did not vacate the judgment but it tolled the interest from 1998 to 2017. The Appellate Term modified the order by holding that defendant owed interest from 1998 but at the post-judgment rate of 9% annually, rather than the 2% compounded monthly rate that was in effect prior to 2002.—LNR
υIn this action by a provider, commenced on June 14, 1996, to recover first-party no-fault benefits for services it had rendered to its assignor in 1995, plaintiff moved for summary judgment, which motion defendant failed to oppose. By order entered March 13, 1998, the Civil Court granted plaintiff’s motion, on default, and awarded plaintiff “the sum of $2,306.24 plus interest from December 11, 1995. The branch of the motion for attorney’s fees is granted to the extent that plaintiff is awarded $250.00 or they may proceed to inquest.” On July 28, 1998, a judgment in the sum of $5,442.42 was entered in plaintiff’s favor.
By order to show cause returnable in March 2017, defendant moved for a stay of execution and/or enforcement of the July 1998 judgment, vacatur or modification of that judgment, dismissal of any statutory interest due to plaintiff’s delay and the doctrine of laches, and a tolling of post-judgment interest due to plaintiff’s delay. In opposition to the motion, plaintiff asserted that it had served defendant’s attorney with a copy of the July 1998 judgment, with notice of entry, on June 16, 2005. Defendant, however, argued that it had received no such notice, and that it had not learned of the judgment until it had received a marshal’s notice in February 2017. By order entered August 9, 2017, the Civil Court granted defendant’s motion to the extent of tolling “pre-judgment” interest from “July 28, 1998 through June 16, 2005 to date” and directing that postjudgment interest be calculated at a rate of 9% per annum; sua sponte, changed the accrual date of prejudgment interest from December 11, 1995 to June 14, 1996; and directed that prejudgment interest be calculated as simple, not compound interest.
With respect to post-judgment interest, CPLR 5003 provides that “[e]very money judgment shall bear interest from the date of its entry” and, generally, interest accrues until the judgment is paid. “Post-judgment interest is awarded as a penalty for the delayed payment of a judgment.” Since plaintiff, as the prevailing party, was not required to make a demand for the payment of the judgment, and did not cause the delay in defendant’s payment of the monies owed, the Civil Court erred in tolling the accrual of interest on the judgment from July 28, 1998 until June 16, 2005.
However, the Civil Court properly determined that, pursuant to CPLR 5004, post-judgment interest should be calculated at a rate of 9% per annum. With respect to prejudgment interest, we note that the regulation in effect in 1995 through 1998 provided for interest at the rate of “2% per month compounded” (see former Insurance Department Regulations [11 NYCRR] § 65.15 [h] [1]).
The parties’ remaining contentions are unpreserved for appellate review or have no merit.
Accordingly, the judgment entered August 16, 2017 is reversed, plaintiff is awarded statutory post-judgment interest from July 28, 1998 at a rate of 9% per annum, and the matter is remitted to the Civil Court for a calculation of interest in accordance with this decision and order, and for the entry of an appropriate judgment thereafter.
2019 NY Slip Op 50505(U)
Decided on March 29, 2019
Appellate Term, Second Department
