February 19, 2021

DJS Med. Supplies, Inc. v Metropolitan Auto Home & Life Ins. (2021 NY Slip Op 50132(U))

Headnote

The relevant facts the court considered in this case were that DJS Medical Supplies, Inc. was seeking to recover assigned first-party no-fault benefits from Metropolitan Auto Home and Life Insurance. The defendant moved to dismiss the complaint on the ground of laches, based on the plaintiff's delay in prosecuting the action. The Civil Court granted this branch of the motion and found that the branch seeking to toll statutory no-fault interest was moot. The main issue decided by the court was whether the complaint should be dismissed based on laches. The holding of the court was that 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 branch of the defendant's motion.

Reported in New York Official Reports at DJS Med. Supplies, Inc. v Metropolitan Auto Home & Life Ins. (2021 NY Slip Op 50132(U))

DJS Med. Supplies, Inc. v Metropolitan Auto Home & Life Ins. (2021 NY Slip Op 50132(U)) [*1]

DJS Med. Supplies, Inc. v Metropolitan Auto Home & Life Ins.

2021 NY Slip Op 50132(U) [70 Misc 3d 141(A)]

Decided on February 19, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2019- 959 Q C

DJS Medical Supplies, Inc., as Assignee of Inna Borodina, Appellant,
against
Metropolitan Auto Home and Life Insurance, Respondent.

Law Office of David O’Connor, P.C. (David B. O’Connor of counsel), for appellant. Bruno, Gerbino. Soriano & Aitken, LLP (Nathan Shapiro and Susan Eisner of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.), entered January 11, 2019. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.

ORDERED that the order, insofar as appealed from, 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 branch of defendant’s motion.

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. Insofar as is relevant to this appeal, the Civil Court granted this branch of defendant’s motion and found that the branch of the motion seeking to toll statutory no-fault interest was moot.

For the reasons stated in V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (67 Misc 3d 142[A], 2020 NY Slip Op 50734[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order, insofar as appealed from, 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 branch of defendant’s motion (see Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co., 66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 19, 2021