March 1, 2019

Sheepshead Bay Oral Surgery, PLLC v Unitrin Direct Ins. Co. (2019 NY Slip Op 51058(U))

Headnote

The relevant facts considered by the court were that the plaintiff, a provider, was seeking to recover first-party no-fault benefits as the assignee of Joiliette Davis, and the defendant, an insurance company, moved to dismiss the complaint. The main issue decided was whether the action was timely, as the six-year statute of limitations for contract actions was applicable, and the cause of action accrued 30 days after the insurer's receipt of the claim. The holding of the court was that the action was not timely, as the defendant established that it received all of the claim forms at issue no later than June 6, 2008, and the action was commenced over six years later. As a result, the defendant's motion to dismiss the complaint was granted.

Reported in New York Official Reports at Sheepshead Bay Oral Surgery, PLLC v Unitrin Direct Ins. Co. (2019 NY Slip Op 51058(U))

Sheepshead Bay Oral Surgery, PLLC v Unitrin Direct Ins. Co. (2019 NY Slip Op 51058(U)) [*1]

Sheepshead Bay Oral Surgery, PLLC v Unitrin Direct Ins. Co.

2019 NY Slip Op 51058(U) [64 Misc 3d 132(A)]

Decided on March 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 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
2017-168 K C

Sheepshead Bay Oral Surgery, PLLC, as Assignee of Joiliette Davis, Respondent,
against
Unitrin Direct Ins. Co., Appellant.

Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 24, 2016. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion to dismiss the complaint.

A first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; 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]; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Boulevard Multispec Med., P.C. v MVAIC, 19 Misc 3d 138[A], 2008 NY Slip Op 50872[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The six-year statute of limitations for contract actions is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). As defendant has established that it received all of the claim forms at issue no later than June 6, 2008, plaintiff’s cause of action accrued on July 6, 2008, and this action, which was commenced over six years later, on February 10, 2015, is untimely.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019