June 12, 2020

V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50734(U))

Headnote

The court considered the plaintiff's delay in prosecuting the action as a basis for dismissal. The main issue decided was whether laches was a proper basis to dismiss the complaint in this action to recover assigned first-party no-fault benefits. The holding was that laches was not a proper basis to dismiss the complaint in this action, and therefore the branch of the defendant's motion seeking dismissal on the ground of laches was denied. The matter was remitted to the Civil Court for a determination of the remaining branches of the defendant's motion.

Reported in New York Official Reports at V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50734(U))

V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50734(U)) [*1]

V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co.

2020 NY Slip Op 50734(U) [67 Misc 3d 142(A)]

Decided on June 12, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2020

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

PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1950 Q C

V.S. Medical Services, P.C., as Assignee of Moises Izquierdo, Appellant,
against
State Farm Mutual Insurance Co., Respondent.

Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and J’naia Boyd of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered May 31, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.

ORDERED that the order is reversed, without 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 branches of defendant’s motion.

Insofar as is relevant to this appeal 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. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.

Laches is not a proper basis to dismiss the complaint in this action (see Arroyo v Board of Educ. of City of NY, 110 AD3d 17 [2013]; see also Montalvo v Mumpus Restorations, Inc., 110 AD3d 1045 [2013]; General Assur. Co. v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Accordingly, the order 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 branches of defendant’s motion.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 12, 2020