Flatbush Chiropractic, P.C. v MVAIC

[*1] Flatbush Chiropractic, P.C. v MVAIC 2015 NY Slip Op 51232(U) Decided on August 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1210 K C

Flatbush Chiropractic, P.C. as Assignee of YVETTE ANTHONY, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered February 5, 2013. The order denied defendant's motion for, among other things, summary judgment dismissing the complaint based on the statute of limitations.

ORDERED that the order is reversed, with $30 costs, and the branch of defendant's motion seeking summary judgment dismissing the complaint based on the statute of limitations is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired or, in the alternative, to dismiss the complaint due to a lack of particularity.

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action has expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). In the case at bar, MVAIC established that the action had been commenced after the expiration of the three-year statute of limitations. In opposition, plaintiff failed to raise an issue of fact as to the action's timeliness (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 429 [2004]; Precision Radiology Servs., P.C. v MVAIC, 34 Misc 3d 126[A], 2011 NY Slip Op 52274[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d & 11th Jud Dists 2008]).

In light of the foregoing, we reach no other issue.

Accordingly, the order is reversed and the branch of defendant's motion seeking summary judgment dismissing the complaint based on the statute of limitations is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 05, 2015