July 19, 2013

Wexford Med., P.C. v Commerce Ins. Co. (2013 NY Slip Op 51193(U))

Headnote

The court considered the fact that the plaintiff had appealed from an order of the Civil Court of the City of New York, New York County, which denied its motion to dismiss the action as time-barred. The main issue decided was whether the action for assigned first-party no-fault benefits was time-barred. The court held that even though the plaintiff's allegations were accepted as true and given the benefit of every favorable inference, the action for assigned first-party no-fault benefits was time-barred and the complaint was dismissed. The court pointed out that the action, commenced on September 18, 2009, was barred by the governing six-year statute of limitations.

Reported in New York Official Reports at Wexford Med., P.C. v Commerce Ins. Co. (2013 NY Slip Op 51193(U))

Wexford Med., P.C. v Commerce Ins. Co. (2013 NY Slip Op 51193(U)) [*1]

Wexford Med., P.C. v Commerce Ins. Co.

2013 NY Slip Op 51193(U) [40 Misc 3d 133(A)]

Decided on July 19, 2013

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Schoenfeld, JJ
570928/12.

Wexford Medical, P.C., a/a/o Eldin Avila, Plaintiff-Appellant,
against
Commerce Insurance Company, Defendant-Appellant.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Elizabeth A. Taylor, J.), dated November 23, 2010, which denied its motion to dismiss plaintiff’s action as time-barred.

Per Curiam.

Order (Elizabeth A. Taylor, J.), dated November 23, 2010, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Even accepting plaintiff’s allegations as true, and according them the benefit of every favorable inference, as required on a motion to dismiss pursuant to CPLR 3211(a)(5) (see Island ADC, Inc., 49 AD3d 815 [2008]), we conclude that this action for assigned first-party no-fault benefits is time-barred. The complaint alleges that “health services” were rendered to the assignor on January 9, 2003, that a bill for such services was “timely received” by defendant insurer, and that defendant failed to properly deny the bill within 30 days or request additional verification. Inasmuch as plaintiff was required to submit the proof of claim no later than 45 days after the services were rendered (see 11 NYCRR 65-1.1[d]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 589-590 [2011]), and the claim accrued 30 days thereafter (see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 [2008]), this action, commenced on September 18, 2009, is barred by the governing six-year statute of limitations (id; Flatlands Acupuncture, P.C. v Fireman’s Fund Ins. Co., 32 Misc 3d 17 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 19, 2013