Allstate Ins. Co. v Cajo

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[*1] Allstate Ins. Co. v Cajo 2012 NY Slip Op 50292(U) Decided on January 30, 2012 Civil Court Of The City Of New York, Queens County Velasquez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 30, 2012
Civil Court of the City of New York, Queens County

Allstate Insurance Company a/s/o Milagros Lopez, Plaintiff,

against

Segundo G. Cajo and Rafael Ernesto Garcia, Defendants.



78849-2010



The attorneys for the plaintiff were: Serpe, Andree & Kaufman, by Jonathan H. Kaufman

P.O. Box 165, Huntington, NY 11743

(631) 421-4488

The attorney for the defendants was: Joseph A. Altman, P.C. by Joseph A. Altman

951 Bruckner Blvd., Bronx, NY 10459

Carmen R. Velasquez, J.



Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion by the defendants to strike action from calendar and cross motion by defendant for a protective order and summary judgment:

Papers:Numbered:

Notice of Motion, Affirmation, Exhibits.............................1

Notice of Cross Motion, Affirmation, Exhibits...................2

Reply Affidavit....................................................................3

This is an action to recover $25,000.00 in basic no fault benefits and $17,500.00 in uninsured benefits paid to plaintiff's subrogor, Milagros Lopez, for personal injuries sustained as the result of an accident that occurred on September 9, 2009 between a vehicle owned and operated by plaintiff's subrogor and a vehicle owned and operated by the defendants. The action was commenced by the filing of a summons and complaint on June 30, 2010. The complaint alleges that the defendants "were uninsured and non-covered persons under Insurance Law Section 5104." Issue was joined by the service of an answer with a demand for a bill of particulars and discovery demands on August 11, 2010. A notice of trial was filed on February 7, 2011. The instant motion by the defendants to strike the action from the calendar was served on August 8, 2011 and the plaintiff's cross motion was served on August 23, 2011.

Insurance Law Section 5104 eliminates the right of a covered person, in an action against [*2]another covered person, to recover for non-economic loss for personal injuries arising out of the negligence in the use or operation of a motor vehicle in this state, except in the case of a serious injury, or for basic economic loss (Ins. Law §5104 [a]). However, the statute does not restrict the right of recovery of a covered person, including one who has been paid first party benefits by an insurer, in an action against a non-covered person, and gives an insurer a lien against any recovery to the extent of benefits paid or payable to the covered person. It also provides that: "The failure of such person to commence such action within two years after accrual gives the insurer a cause of action for the amount of first party benefits paid or payable against any person who may be liable to the covered person for his personal injuries" (Ins. Law §5104 [b]).

When a statute both creates a cause of action and attaches a time limit to its commencement, the time is an ingredient of the cause of action (Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 379 ; citing Romano v Romano, 19 N Y 2d 444, 447 ; cf Copeland v Salomon, 56 NY2d 222). In accordance with this rule, it has been found that since Insurance Law Section 5104(b), formerly Section 673(2), "was intended to, and clearly provides, that a new and independent action is created in favor of the insurer, but only upon the lapse of two years after the injury to the insured, during which the insured had failed to sue for first-party benefits, the insurer's action could not accrue until after both of these conditions have been satisfied." (Safeco Inc. Co. v Jamaica Water Supply Co., 83 AD2d 427, 433, aff'd 57 NY2d 994; see also Aetna Life & Casualty Co. v Nelson, 67 NY2d 169). When the instant action was commenced, less than a year had elapsed from the date of the accident in which the injuries were allegedly sustained by plaintiff's subrogor. Therefore, the plaintiff's right to commence this action to recover no fault and uninsured benefits paid to its insured had not accrued.

Plaintiff's right to commence this action did not accrue until September 9, 2011 and post-dated the filing of a notice of trial by the plaintiff.However, the defendants did not move to dismiss the action as untimely. Instead, the defendants have moved to strike the action from the calendar pending completion of discovery, specifically, a physical examination of plaintiff's subrogor, Milagros Lopez. Although the plaintiff's right to commence this action has now accrued, it would be unjust to permit the plaintiff to benefit from the premature commencement of the action. Therefore, the notice of trial will be vacated and the action stricken from the trial calendar.

The defendants dispute the cause and extent of the physical injuries for which the no fault benefits and uninsured benefits, sought to be recovered in this action, were paid to plaintiff's subrogor and have served a demand for a physical examination of Milagros Lopez. The benefits paid to plaintiff's subrogor were substantial and at her deposition she testified that she still has some pain from her injuries. Therefore, the plaintiff is required to produce Milagros Lopez for a physical examination by the physician designated by the defendants (see CPLR §3121[a]; NYCCA § 208.13).

The plaintiff's cross motion for summary judgment is untimely in two respects. It was made before plaintiff's right to commence this action had accrued, and it was made more that 120 [*3]days after the notice of trial was filed in this action in violation of the statutory time restraints (see CPLR §3212 [a]). In any event, the affidavit of defendant, Rafael Ernesto Garcia, submitted in opposition to plaintiff's cross motion, attributes the accident to the unexpected and inexplicable stop of the vehicle operated by plaintiff's subrogor. This raises triable issues of fact as to the negligence of the parties and cause of the accident and precludes an award of summary judgment to the plaintiff (see Tutrani v County of Suffolk; 10 NY3d 906).

Accordingly, the defendants' motion is granted and the plaintiff's cross motion is denied.

This action is stricken from the trial calendar and plaintiff is directed to produce its subrogor, Milagros Lopez, for a physical examination by the physician designated by defendants within sixty (60) days of service of a copy of this order with notice of entry.

Upon service of a copy of this order with notice of entry, the Clerk is directed to strike this action from the Part 15 trial calendar of May 21, 2012.

This constitutes the opinion, decision and order of the Court.

Dated: January 30, 2012.

_____________________________________Hon.Carmen R. Velasquez

Judge, Civil Court

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