March 16, 2015

A.M. Med., P.C. v Continental Ins. Co. (2015 NY Slip Op 50389(U))

Headnote

The relevant facts considered in this case were that A.M. Medical, P.C. was seeking to recover no-fault benefits from Encompass Insurance Company, and the claim forms at issue were received by Encompass on or before February 8, 2001. The main issue decided was whether the action, commenced in June 2007, was untimely based on the six-year statute of limitations for contract actions. The court held that Encompass had established that the claim forms were received by them on or before February 8, 2001, and thus the action, commenced in June 2007, was untimely. Therefore, the court reversed the order and granted Encompass' motion for summary judgment dismissing the complaint insofar as asserted against them.

Reported in New York Official Reports at A.M. Med., P.C. v Continental Ins. Co. (2015 NY Slip Op 50389(U))

A.M. Med., P.C. v Continental Ins. Co. (2015 NY Slip Op 50389(U)) [*1]

A.M. Med., P.C. v Continental Ins. Co.

2015 NY Slip Op 50389(U) [47 Misc 3d 128(A)]

Decided on March 16, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1998 K C

A.M. Medical, P.C. as Assignee of NATALIA PANARINA, Respondent, The
against
Continental Insurance Co., Defendant, -and- ENCOMPASS INSURANCE COMPANY, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 11, 2011. The order denied a motion by defendant Encompass Insurance Company for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, with $30 costs, and the motion by defendant Encompass Insurance Company for summary judgment dismissing the complaint insofar as asserted against it is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Encompass Insurance Company (Encompass) appeals from an order of the Civil Court which denied Encompass’s motion for summary judgment dismissing the complaint insofar as asserted against it.

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; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 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 & 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 Encompass has established that the claim forms at issue were received by it on or before February 8, 2001, it correctly argues that plaintiff’s causes of action accrued on or before March 10, 2001, and, thus, this action, which was commenced in June 2007, is untimely (see DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

We reject plaintiff’s argument that Encompass was required, as part of its prima facie showing on its motion, to demonstrate that the payment due date was not tolled by a verification request (see Shtarkman v MVAIC, 20 Misc 3d 132[A], 2008 NY Slip Op 51447[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, the order is reversed and the motion by Encompass for summary judgment dismissing the complaint insofar as asserted against it is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: March 16, 2015