Ocean View Med. Care, P.C. v Good2Go Auto Ins. (2024 NY Slip Op 51832(U))

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 26, 2023. The order granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.), dated September 26, 2023, which granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default judgment.

Contrary to plaintiff’s sole contention on appeal, it was not improper for the Civil Court to rely upon the argument, made by defendant for the first time in its reply to its cross-motion, that the claim determination period had not been tolled by requests for verification, as it was made in response to new evidence submitted by plaintiff. Specifically, in its opposition to defendant’s cross-motion, plaintiff sought to demonstrate that its cause of action accrued later than the date relied upon by defendant by submitting an affidavit of its owner alleging, upon information and belief, that defendant had requested additional verification and that plaintiff had supplied the requested verification. This affidavit conflicted with documents that were submitted by plaintiff with its moving papers: the complaint and an earlier affidavit of plaintiff’s owner. As defendant’s arguments in its reply papers, regarding the alleged additional verification and, thus, the accrual date, were in response to the new evidence submitted by plaintiff in its opposition papers, the Civil Court properly considered defendant’s arguments (see Gelaj v Gelaj, 164 AD3d 878, 879 [2018]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207 [2009]; Anderson v Beth Israel Med. Ctr., 31 AD3d 284, 287 [2006]; Davison v Order Ecumenical, 281 AD2d 383, [*2]383 [2001]). Consequently, plaintiff has not demonstrated any basis to disturb the order.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.