May 1, 2020

PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50497(U))

Headnote

The court considered a motion filed by the defendant to dismiss the complaint on the ground of laches, based on the delay in prosecuting the action by the plaintiff, PDG Psychological, P.C., as assignee of Jose Alba, seeking to recover assigned first-party no-fault benefits from State Farm Mutual Insurance Co. The Civil Court granted the defendant's motion to dismiss the complaint on the ground of laches, finding the remaining branches of the motion moot. However, on appeal, the Appellate Term, Second Department reversed the order, denied the branch of defendant's motion seeking to dismiss the complaint on the ground of laches, and remitted the matter to the Civil Court for a determination of the remaining branches of the defendant's motion. The relevant issue decided was the dismissal of the complaint on the ground of laches, and the holding of the appellate court was to reverse the order and remit the matter for further determination.

Reported in New York Official Reports at PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50497(U))

PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50497(U)) [*1]

PDG Psychological, P.C. v State Farm Mut. Ins. Co.

2020 NY Slip Op 50497(U) [67 Misc 3d 134(A)]

Decided on May 1, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-1952 Q C

PDG Psychological, P.C., as Assignee of Jose Alba, Appellant,
against
State Farm Mutual Insurance Co., Respondent.

Law Office of David O’Connor, LLC (David B. O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered May 30, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Insofar as is relevant to this appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.

For the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (___ Misc 3d ___, 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion (see V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co., [*2]___ Misc 3d ___, 2020 NY Slip Op 50405[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

ENTER:

Paul Kenny

Chief Clerk
Decision Date: May 1, 2020