Lotus Acupuncture, P.C. v NYCTA-MABSTOA

[*1] Lotus Acupuncture, P.C. v NYCTA-MABSTOA 2015 NY Slip Op 50467(U) Decided on April 7, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., SOLOMON and ELLIOT, JJ.
2013-1144 Q C

Lotus Acupuncture, P.C. as Assignee of EMMA HENDERSON, Appellant,

against

NYCTA-MABSTOA, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 27, 2013. The order, insofar as appealed from as limited by the brief, granted defendant's motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's motion to dismiss the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, after issue was joined, defendant moved, pursuant to CPLR 3211, to dismiss the complaint on the ground that the action was commenced after the expiration of the three-year limitation period of CPLR 214 (2), which, defendant contended, was applicable to self-insurers such as defendant. In opposition to the motion, plaintiff argued, among other things, that the action is subject to a six-year statute of limitations. Plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted defendant's motion.

We have consistently held, in reliance on Appellate Division, Second Department, cases, that an action to recover first-party no-fault benefits from a self-insured entity, such as defendant, is subject to the same six-year statute of limitations as an action against an insurer pursuant to the policy (see Contact Chiropractic, P.C. v New York City Tr. Auth., 42 Misc 3d 60 [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]; Spring World Acupuncture, P.C. v NYC Tr. Auth., 24 Misc 3d 39 [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff's action was not time-barred, the Civil Court should not have dismissed the complaint.

We note that while plaintiff raises an issue with respect to defendant's notice of motion, the Civil Court never converted defendant's motion to one for summary judgment, and there is no indication that plaintiff was prejudiced by any perceived confusion in the labeling of defendant's motion (see Schultz v Estate of Sloan, 20 AD3d 520 [2005]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion to dismiss the complaint is denied.

Weston, J.P., Solomon and Elliot, JJ., concur.

Decision Date: April 07, 2015