Opinion
570112/10.
Decided October 22, 2010.
New Millenium Medical Supply, NY County Clerk's No. 570112/10 a/a/o Gibson Stayman, Plaintiff-Respondent, against Calendar No. 10-106 Clarendon National Insurance Company, Defendant-Appellant. Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated April 23, 2009, which denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Peter H. Moulton, J.), dated April 23, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly. Plaintiff's cause of action to recover assigned first-party no-fault benefits pursuant to a policy of insurance was not interposed within the applicable six-year statute of limitations (see Mandarino v Travelers Property Cas. Ins. Co., 37 AD3d 775), since the cause of action accrued on the date the claim became overdue — here, 30 days after defendant's receipt of the claim — not the date of defendant's untimely denial of the claim (see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319; Benson v Boston Old Colony Ins. Co., 134 AD2d 214, lv denied 71 NY2d 801). Plaintiff's reliance on Matter of Taggart v State Farm Mut. Auto. Ins. Co. ( 272 AD2d 222) is misplaced, since that case involved a general denial of claim issued under 11 NYCRR 65.15(g)(2)(ii) (now 65-3.8[b][2]) terminating no-fault benefits on the ground that the claimant was no longer disabled, while the matter at bar involves the factually and legally distinct situation in which a specific claim for no-fault benefits has been submitted to an insurer for payment or denial. Therefore, the complaint should have been dismissed as time-barred (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Matter of Travelers Indem. Co. of Conn., supra; Benson, supra).
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated April 23, 2009, which denied its motion for summary judgment dismissing the complaint.
Order (Peter H. Moulton, J.), dated April 23, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
PRESENT: McKeon, P.J., Schoenfeld, Hunter, Jr., JJ.
Plaintiff's cause of action to recover assigned first-party no-fault benefits pursuant to a policy of insurance was not interposed within the applicable six-year statute of limitations (see Mandarino v Travelers Property Cas. Ins. Co., 37 AD3d 775), since the cause of action accrued on the date the claim became overdue — here, 30 days after defendant's receipt of the claim — not the date of defendant's untimely denial of the claim ( see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319; Benson v Boston Old Colony Ins. Co., 134 AD2d 214, lv denied 71 NY2d 801). Plaintiff's reliance on Matter of Taggart v State Farm Mut. Auto. Ins. Co. ( 272 AD2d 222) is misplaced, since that case involved a general denial of claim issued under 11 NYCRR 65.15(g)(2)(ii) (now 65-3.8[b][2]) terminating no-fault benefits on the ground that the claimant was no longer disabled, while the matter at bar involves the factually and legally distinct situation in which a specific claim for no-fault benefits has been submitted to an insurer for payment or denial. Therefore, the complaint should have been dismissed as time-barred ( see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Matter of Travelers Indem. Co. of Conn., supra; Benson, supra).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.