Bhupinder Singh Sawhney, M.D. v Clarendon Natl. Ins. Co.

[*1] Bhupinder Singh Sawhney, M.D. v Clarendon Natl. Ins. Co. 2014 NY Slip Op 50601(U) Decided on March 27, 2014 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 27, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2012-1297 K C.

Bhupinder Singh Sawhney, M.D., as Assignee of MIRLA YARIXA WARRELL, Respondent,

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, in effect, 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 of the Civil Court
as, in effect, denied defendant's cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5), on the ground that it had been served late. As 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 (see Comprehensive Psychiatric Care, P.C. v Clarendon Natl. Ins. Co., 42 Misc 3d 140[A], 2014 NY Slip Op 50184[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

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).

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 27, 2014