Comprehensive Psychiatric Care, P.C. v Clarendon Natl. Ins. Co.
Annotate this CaseDecided on February 11, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and WESTON, JJ
2012-1031 K C.
Comprehensive Psychiatric Care, P.C. as Assignee of AMBIORIX GUZMAN and KELVIN MARTE,
against
Clarendon National Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 30, 2011. The order, insofar as appealed from as limited by the brief, denied, as untimely, defendant's cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a determination of the merits of defendant's cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as "rejected as untimely" defendant's cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5). As it is undisputed by the parties that defendant's cross motion was timely pursuant to a so-ordered stipulation setting forth the dates by which any cross motion had to be served, the Civil Court erred in failing to consider defendant's cross motion.
Accordingly, the order, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a determination of the merits of defendant's cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).
Aliotta, J.P., Pesce and Weston, JJ., concur.
Decision Date: February 11, 2014
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