Opinion
2004-1626 S C.
Decided June 27, 2005.
Appeal by plaintiff from an order of the District Court, Suffolk County (T. Bean, J.), dated September 20, 2004, granting defendant's motion for summary judgment dismissing the complaint.
Order unanimously affirmed without costs.
Before: PRESENT: RUDOLPH, P.J., McCABE and COVELLO, JJ.
As subrogee, plaintiff commenced this action on or about May 26, 2004 to recover monies paid to its insured for amounts in excess of no-fault benefits, for injuries arising out of an accident occurring on May 2, 2001. Contrary to the determination of the court below, Insurance Law § 5105 which pertains to "Settlement between insurers" has no application herein ( see Federal Ins. Co. v. Hansen, 162 AD2d 224).
After defendant moved for summary judgment dismissing the complaint on the ground that the instant action was, inter alia, barred by the statute of limitations, plaintiff asserted that it had previously served defendant with a summons and complaint in April 2004, by which it sought to recover the same excess no-fault benefits, and cross-moved for leave to file the proof of service for its April summons and complaint nunc pro tunc ( see UDCA 411). Although the court below did not address the cross motion in its written decision, upon a review of the record, we find that under the circumstances herein, said cross motion should not be granted. Inasmuch as the subrogee acquires only the rights that the subrogor had, the statute of limitations begins to run from the date of the accident ( see Allstate Ins. Co. v. Stein, 1NY3d 416 [2004]). Since the instant action was commenced more than three years after the accident, the action was time-barred and the complaint was properly dismissed.