Arguelles M.D., P.C. v American Ind. Ins. Co.

[*1] Arguelles M.D., P.C. v American Ind. Ins. Co. 2022 NY Slip Op 50926(U) Decided on September 23, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 23, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1413 K C

Arguelles M.D., P.C., as Assignee of Darvell Tribe, Respondent,

against

American Independent Ins. Co., Omni Indemnity Company, American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, Appellants.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 25, 2019. The order, insofar as appealed from, denied defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendants' motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendants appeal from so much of an order of the Civil Court as denied defendants' motion which had sought summary judgment dismissing the complaint on the ground, among others, that the action was barred by the statute of limitations.

In support of a cross motion for summary judgment, plaintiff submitted an affidavit by plaintiff's owner who asserted that the subject claim forms were submitted to defendants on or before October 20, 2007, that the claims had not been paid, and that statutory interest was to be computed as of 30 days after each claim's submission. Consequently, the payment due date, as implicitly alleged by plaintiff in its complaint and in the affidavit by plaintiff's owner, must be deemed to have been in November 2007, that is, 30 days after defendants' receipt of the claims (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; Shtarkman v MVAIC, 20 Misc 3d 132[A], [*2]2008 NY Slip Op 51447[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Plaintiff did not commence this action until 2018, after the six-year statute of limitations for contract actions, which is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), had expired. As plaintiff raised no issue of fact as to the timeliness of the action, defendants' motion to dismiss based on the statute of limitations should have been granted (see A.M. Med., P.C. v Continental Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50389[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is reversed and defendants' motion for summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 23, 2022