Opinion
2017-168 K C
03-01-2019
SHEEPSHEAD BAY ORAL SURGERY, PLLC, as Assignee of Joiliette Davis, Respondent, v. UNITRIN DIRECT INS. CO., Appellant.
Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber of counsel), for appellant.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 24, 2016. The order denied defendant's motion to dismiss the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's motion to dismiss the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant's motion to dismiss the complaint.
A first-party no-fault cause of action accrues 30 days after the insurer's receipt of the claim (see Insurance Law § 5106 [a] ; 11 NYCRR 65-3.8 ; DJS Med. Supplies, Inc. v. Clarendon Natl. Ins. Co. , 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Kings Highway Diagnostic Imaging, P.C. v. MVAIC , 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Boulevard Multispec Med., P.C. v. MVAIC , 19 Misc 3d 138[A], 2008 NY Slip Op 50872[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008] ). The six-year statute of limitations for contract actions is applicable to this cause of action (see CPLR 213 [2] ; Mandarino v. Travelers Prop. Cas. Ins. Co. , 37 AD3d 775 [2007] ). As defendant has established that it received all of the claim forms at issue no later than June 6, 2008, plaintiff's cause of action accrued on July 6, 2008, and this action, which was commenced over six years later, on February 10, 2015, is untimely.
Accordingly, the order is reversed and defendant's motion to dismiss the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.