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A.B. Medical Services, Pllc, D.A.V. Chiropractic, P.C. and Lvov Acupuncture, P.C. A/A/O Marie Celestin and Emmanuel Desmarais v. New York City Transit Authority

New York Supreme and/or Appellate Courts Appellate Term, Second Department


August 31, 2009

A.B. MEDICAL SERVICES, PLLC, D.A.V. CHIROPRACTIC, P.C. AND LVOV ACUPUNCTURE, P.C. A/A/O MARIE CELESTIN AND EMMANUEL DESMARAIS,
APPELLANTS,
v.
NEW YORK CITY TRANSIT AUTHORITY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered October 20, 2008.

A.B. Med. Servs., PLLC v New York City Tr. Auth.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2009

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

PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ

The order granted defendant's motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant's motion for summary judgment dismissing the complaint denied.

Plaintiffs commenced the instant action to recover assigned first-party no-fault benefits for various services rendered to their assignors. Defendant moved for summary judgment dismissing the complaint on the ground that the action was commenced after the expiration of the three-year statute of limitations of CPLR 214 (2), which, defendant contended, was applicable to self-insurers such as defendant. In opposition to the motion, plaintiffs argued that the action was governed by the six-year statute of limitations of CPLR 213 (2), applicable to actions based "upon a contractual obligation or liability, express or implied." The Civil Court granted defendant's motion for summary judgment dismissing the complaint, and the instant appeal by plaintiffs ensued.

In Spring World Acupuncture, P.C. v NYC Tr. Auth. (24 Misc 3d 39 [App Term, 2d, 11th & 13th Jud Dists 2009]), this court held that an action to recover first-party no-fault benefits from the defendant, a self-insured entity, was subject to the same six-year statute of limitations as an action against an insurer pursuant to a policy (see also Richard Denise, M.D., P.C. v New York City Tr. Auth., ___ Misc 3d ___, 2009 NY Slip Op 29313 [App Term, 1st Dept 2009]). Accordingly, the order is reversed and defendant's motion is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur. Decision

Date: August 31, 2009

20090831

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