Opinion
2018-1277 K C
02-18-2022
Vincent Medical Services, P.C., as Assignee of Gederson Gedeon, Respondent, v. Omni Indemnity Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
Unpublished Opinion
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
PRESENT:: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered May 10, 2018. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion which had sought summary judgment dismissing the complaint on the ground, among others, that the action was barred by the statute of limitations.
The affidavit of plaintiff's owner submitted in support of plaintiff's cross motion for summary judgment asserted that the subject claim forms were submitted to defendant on or before December 2, 2005, that the claims had not been paid and that statutory interest was to be computed as of 30 days after each claims' submission. Consequently, the payment due date, as implicitly alleged by plaintiff in its complaint and in the affidavit by plaintiff's owner, must be deemed to have been in January 2006, that is, 30 days after receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; Shtarkman v MVAIC, 20 Misc.3d 132 [A], 2008 NY Slip Op 51447[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Plaintiff did not commence this action until 2017, after the six-year statute of limitations for contract actions, which is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 A.D.3d 775 [2007]), had expired. As plaintiff raised no issue of fact as to the timeliness of the action, defendant's motion to dismiss based on the statute of limitations should have been granted (see A.M. Med., P.C. v Continental Ins. Co., 47 Misc.3d 128 [A], 2015 NY Slip Op 50389[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; 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]).
Accordingly, the order insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., and GOLIA, J., concur.
ELLIOT, J., taking no part.