Opinion
No. 2004-1045 K C.
Decided July 21, 2005.
Appeal by plaintiff from so much of an order of the Civil Court, Kings County (D. Kurtz, J.), entered on June 4, 2004, as granted its motion for summary judgment to the extent of ordering an assessment of damages.
Order modified by providing that plaintiff's motion for summary judgment is granted, by deleting therefrom the provision requiring an assessment of damages and by remanding the matter to the court below for a calculation of the statutory interest and an assessment of attorney's fees; as so modified, affirmed without costs.
Before: PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
In awarding summary judgment in favor of plaintiff, the court erroneously set the matter down for an assessment of damages. Inasmuch as plaintiff made out a prima facie case by the submission of proof of the claim and the amount of the loss sustained (Insurance Law § 5106), and the calculation of interest and attorney's fees is prescribed by statute (Insurance Law § 5106 [a]) and the regulations promulgated thereunder ( 11 NYCRR 65-3.9 [a]; 65-3.10 [a]), there was no basis for the court to direct an assessment of damages ( cf. S M Supply Inc. v. Dollar Rent A Car Sys., 5 Misc 3d 36 [App Term, 2d 11th Jud Dists 2004]). Accordingly, the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., and Patterson, J., concur.
Golia, J., concurs in a separate memorandum.
Golia, J.P., concurs with the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
I simply do not understand, and indeed marvel at, the failure of the defendant either to respond to or to include any affidavits by individuals with personal knowledge of the facts.