Active Care Med. Supply Corp. v MVAIC

[*1] Active Care Med. Supply Corp. v MVAIC 2019 NY Slip Op 52073(U) Decided on December 13, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1859 K C

Active Care Medical Supply Corp., as Assignee of Ramdeen, Tulsidai, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Jeffrey Kadushin of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered July 20, 2018, deemed from a judgment of that court entered August 28, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 20, 2018 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 $2,369.81.

ORDERED that the judgment is reversed, with $30 costs, the order entered July 20, 2018 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. MVAIC's appeal from an order entered July 20, 2018 granting plaintiff's motion and denying MVAIC's cross motion is deemed to be from a judgment in favor of plaintiff in the principal sum of $2,369.81 that was entered on August 28, 2018 pursuant to the order (see CPLR 5501 [c]).

MVAIC's motion papers established, prima facie, that the action had been 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 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]). In light of the foregoing, we reach no other issue.

Accordingly, the judgment is reversed, the order entered July 20, 2018 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary [*2]judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019