Craniofacial Pain Mgt. v Allstate Ins. Co., 2018 NY Slip Op 51825(U)(App. Term 2d Dept. 2018)
“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]).”
But See McMillan v. Unionamerica Resinsurance Co., 70 AD2d 659 (2d Dept. 1979)(“Furthermore, the judgment properly provided that interest on the award continue to accrue at the rate of 2% per month “pursuant to statute,” rather than at the legal rate of 6% per annum specified in CPLR 5004. CPLR 5004 expressly provides for the application of interest rates other than the legal rate of 6% per annum “where otherwise provided by statute”. In the instant case, the interest rate of 2% per month applied by Special Term is prescribed by subdivision 1 of section 675 of the Insurance Law”)
5 Responses
But McMillan refers to interest upon an arbitration award, not interest on a judgment.
“the judgment properly provided…”
CPLR is clear that other statutory interest may supercede the 9% default rate. However, Defendants have always thrown this argument into papers just in case a court ever wanted to use it to reduce the amount of the judgment, I suspect that’s why the 2d Dept bit.
Yup.
While working on something, I realized that the COA recognized the statutory interest of 2%
“By statute, overdue payments{**9 NY3d at 318} earn monthly interest at a rate of two percent and entitle a claimant to reasonable attorneys’ fees incurred in securing payment of a valid claim (see Insurance Law § 5106 [a]).”
Because the coa recognizes interest is statutory, it is clear that it supersedes cplr 5004.
http://www.nycourts.gov/reporter/3dseries/2007/2007_09067.htm