| Carlin v Hereford Ins. Co. |
| 2015 NY Slip Op 01601 [125 AD3d 917] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| William J. Carlin, Jr., Respondent, v HerefordInsurance Company, Appellant. |
Mura & Storm, PLLC, Buffalo, N.Y. (Roy A. Mura of counsel), forappellant.
Gregory W. Bagen, Brewster, N.Y., for respondent.
In an action to recover no-fault benefits under a policy of automobile insurance, thedefendant appeals from a judgment of the Supreme Court, Putnam County (Nicolai, J.),entered August 16, 2010, which, after a nonjury trial, is in favor of the plaintiff andagainst it in the principal sum of $210,587.30, comprising $72,000 in principal arrearsand $138,587.30 in accrued compound interest. Justice Rivera has been substituted forformer Justice Angiolillo, Justice Skelos has been substituted for former Justice Belen,and Justice Dillon has been substituted for former Justice Lott (see 22 NYCRR670.1 [c]).
Ordered that the judgment is modified, on the law, by deleting the provision thereofawarding the plaintiff compound interest in the sum of $138,587.30; as so modified, thejudgment is affirmed, without costs or disbursements, and the matter is remitted to theSupreme Court, Putnam County, for further proceedings in accordance herewith, and theentry of an appropriate amended judgment thereafter.
On August 9, 2004, Sharon Heidei, also known as Sharon Rollman (hereinafter thedecedent) was injured in an automobile accident. On November 13, 2004, the decedentfiled a claim with the defendant, Hereford Insurance Company, to recover for basiceconomic loss and additional personal injury protection benefits. The defendantthereafter disclaimed coverage. On October 17, 2008, the decedent commenced thisaction, seeking to recover those benefits. On August 16, 2010, after a nonjury trial, theSupreme Court entered a judgment in favor of the decedent and against the defendant.The defendant appeals.
On October 28, 2011, approximately one month after oral argument on this appealwas heard, the decedent died, and the matter was stayed by operation of CPLR 1021,pending substitution of the decedent's personal representative. In 2012, the defendantpetitioned the Surrogate's Court, Putnam County, to appoint an administrator of thedecedent's estate. On July 9, 2014, the Surrogate's Court granted the defendant's petition,and appointed Putnam County Commissioner of Finance William J. Carlin, Jr., as theadministrator of the decedent's estate. By decision and order dated November 21, 2014,this Court granted the defendant's motion to substitute Carlin as the respondent in placeof the decedent, and lifted the stay. Pursuant to the terms of that order, the appeal wassubsequently deemed to have been submitted on the original briefs.
Since three of the four justices who heard oral argument were no longer on the bench[*2]when the stay was lifted, three other justices of thisCourt have been substituted for them (see 22 NYCRR 670.1 [c]).
In connection with policies of automobile insurance, Insurance Law§ 5102 (d) defines "basic economic loss" as up to $50,000 per person forcombined expenses incurred by a covered person as a consequence of an automobileaccident for medical, hospital, surgical, dental, and similar charges, loss of earnings, andother reasonable and necessary expenses. Insurance Law § 5103 (a)mandates that all automobile insurance policies written in New York provide for suchcoverage, commonly known as no-fault coverage. The defendant's contention that, inlight of the nature of the underlying accident, the plaintiff was not a covered personunder the no-fault provisions of the subject automobile insurance policy is not properlybefore this Court, since the defendant is raising it for the first time on appeal (see NYU Hosp. for Joint Diseasesv Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]).Moreover, this defense does not raise a pure question of law apparent on the face of therecord that could not have been avoided if raised at the proper juncture (see NYU Hosp. for Joint Diseasesv Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]).Accordingly, we do not disturb so much of the judgment as, in effect, awarded theplaintiff $50,000 in unpaid basic no-fault benefits.
The automobile insurance policy issued by the defendant also provided optionaladditional personal injury protection, with limits of $150,000, for covered persons whosustained extended economic loss as a consequence of an automobile accident. Thiscoverage is commonly known as excess no-fault coverage. The defendant failed topreserve for appellate review its contention that the plaintiff was ineligible for coverageunder the additional personal injury protection provisions of the subject policy since, attrial, it made no reference to the governing insurance regulations, nor did it request thatthe Supreme Court take judicial notice thereof (see CPLR 4511 [b]; cf. Matter of Damian M., 41AD3d 600 [2007]; Matter of Olympia Victoria R., 261 AD2d 191 [1999]).The defendant's contention on appeal that the plaintiff was ineligible for excess no-faultcoverage does not raise a pure question of law that could not have been avoided if raisedat the proper juncture (see NYUHosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007];cf. Block v Magee, 146 AD2d 730, 732-733 [1989]). Accordingly, we do notdisturb so much of the judgment as, in effect, awarded the plaintiff $22,000 in unpaidexcess no-fault benefits.
Although the defendant also failed to raise before the Supreme Court its contentionthat the court erred in applying compound interest accruing at 2% per month to theunpaid no-fault benefits (see CPLR 4017; cf. Corsi v Town of Bedford, 58 AD3d 225, 228 [2008]),we review this issue on appeal because it presents a pure question of law that could nothave been avoided if brought to the Supreme Court's attention at the proper juncture (see Mount Sinai Hosp. v CountryWide Ins. Co., 81 AD3d 700, 701 [2011]; Block v Magee, 146 AD2d at732-733). The Supreme Court erred in awarding compound interest, since the pertinentNew York insurance regulations provide for the accrual of simple interest on improperlywithheld no-fault benefits at a rate of 2% per month (see 11 NYCRR 65-3.9 [a];Insurance Law § 5106 [a]; Matter of Medical Socy. of State of N.Y. vSerio, 100 NY2d 854, 871 [2003]).
Accordingly, we remit this matter to the Supreme Court, Putnam County, for therecalculation of the interest accrued on the award of the principal sum of $72,000 inunpaid no-fault benefits, by applying simple interest at the rate of 2% per month, fromJanuary 15, 2005, through July 15, 2010, and the entry of an appropriate amendedjudgment thereafter. Mastro, J.P., Rivera, Skelos and Dillon, JJ., concur.