Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co. (2013 NY Slip Op 50900(U))

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

Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered February 17, 2011. The order granted defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action is barred by the statute of limitations.

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). “In an action which is commenced by service, a claim asserted in the complaint is interposed against the defendant . . . when the summons is served upon the defendant” (CPLR 203 [b] [1]). The present action was commenced in the Civil Court in 2003 by service of the summons, pursuant to CPLR 312-a (see CCA former 403), before the filing system for commencing actions in the Civil Court took effect. Here, dismissal of the action due to a violation of former section 409 of the New York City Civil Court Act, which required that a copy of the summons with proof of service ^[FN1] be filed with the clerk of the court within 14 days after service of the summons, is not warranted, since, by order entered October 16, 2009, the Civil Court (Katherine A. Levine, J.) conditionally permitted the filing thereof nunc pro tunc ^[FN2] [*2]
(see CCA former section 411; J.R. Dugo, D.C., P.C. v New York Cent. Mut. Ins. Co., 24 Misc 3d 68 [App Term, 2d, 11th & 13th Jud Dists 2009]). It is undisputed that plaintiff filed the summons with proof of service in accordance with Judge Levine’s order and, thus, the filing was given nunc pro tunc effect (see CCA former section 411). Consequently, since the cause of action accrued in 2002, defendant failed to make a prima facie showing that the six-year statute of limitations (see CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]) had expired prior to the April 2003 commencement of the action.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations is denied.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 22, 2013

Footnotes

Footnote 1: In the instant case, proof of service was defendant’s signed acknowledgment of receipt of the mailed service of the summons (see CPLR 312-a [b]).

Footnote 2: The issue of whether the Civil Court providently exercised its discretion in permitting the nunc pro tunc filing after more than five years is not subject to review on this appeal.