Clinton Place Med., P.C. v MVAIC

[*1] Clinton Place Med., P.C. v MVAIC 2017 NY Slip Op 51893(U) Decided on December 22, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1635 K C

Clinton Place Medical, P.C., as Assignee of Goins Warren, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for appellant. Law Offices of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 24, 2015, deemed from a judgment of the same court entered January 26, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 24, 2015 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,652.81.

ORDERED that the judgment is reversed, with $30 costs, the order entered April 24, 2015 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no fault benefits, plaintiff moved for summary judgment, and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired. The Civil Court granted plaintiff's motion and denied defendant's cross motion. Defendant's appeal from the order is deemed from the judgment that was subsequently entered (see CPLR 5501 [c]).

MVAIC's cross motion papers established, prima facie, that the action had been [*2]commenced after the expiration of the three-year statute of limitations (see Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). 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 [2004]; Precision Radiology Servs., P.C. v MVAIC, 34 Misc 3d 126[A], 2011 NY Slip Op 52274[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, the order entered April 24, 2015 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017