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Giant Oops from the Appellate TermDecember 27, 2017

B.Z. Chiropractic, P.C., As Assignee of Tony Dance v Allstate Ins. Co., 2017 NY Slip Op 96378(U)(App. Term 2d Dept. 2017)

“Motion by appellant for the clarification of a decision and order of this court dated August 18, 2017, which determined appeals from orders of the Civil Court of the City of New York, Queens County, entered November 19, 2015 and July 7, 2016, respectively, or, in the alternative, for leave to appeal to the Appellate Division from the decision and order of this court.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the branch of the motion seeking clarification is granted to the extent of clarifying that it was this court’s intention to note that interest be awarded at the rate of nine percent per year as set forth in CPLR 5004; and it is further,

ORDERED that the branch of the motion seeking leave to appeal to the Appellate Division is denied without prejudice to appellant’s other remedies, if any, as the portion of this court’s decision and order which appellant seeks to appeal is advisory and is not appealable as of right or by permission (see IndyMac Bank F.S.B. v Thompson, 99 AD3d 669 [2012]).”

Two things: CPLR 5004 as noted in McMillan v. UnionAmerica 70 AD2d 659 specifically holds that CPLR 5004 expressly allows for an interest rate other than (now 9%) when another statute says otherwise.  5106 and the regulations set forth 2% per month.  I am unsure why the Justices at the Appellate Term just could not admit they were wrong.

Also, I think this is totally appealable.  I think the Appellate Division would accept leave if it were sought.

 

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