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Flatlands Acupuncture, P.C. As Assignee of Pedro Ramirez v. Fireman's Fund Ins. Co

April 5, 2011

FLATLANDS ACUPUNCTURE, P.C. AS ASSIGNEE OF PEDRO RAMIREZ,
APPELLANT,
v.
FIREMAN'S FUND INS. CO.,
RESPONDENT.



Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 18, 2009.

Flatlands Acupuncture, P.C. v Fireman's Fund Ins. Co.

Decided on April 5, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

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

The order granted defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

ORDERED that the order is modified by providing that the branches of defendant's motion seeking to dismiss the $540 claim (dates of service 02/01/01 - 02/26/01), the $630 claim (dates of service 03/02/01 - 03/31/01), and the $540 claim (dates of service 04/03/01 - 04/24/01) are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, by order to show cause, to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action was barred by the statute of limitations. The Civil Court granted the motion, and this appeal by plaintiff ensued.

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). The time within which an action must be commenced is computed "from the time the cause of action accrued to the time the claim is interposed" (CPLR 203 [a]). In this case, the claim was interposed when the summons and complaint were filed on August 29, 2007 (CCA 400) and not, as defendant alternatively claims, on August 3, 2007 (the date of the summons and complaint) or on November 28, 2007 (the date of service on the New York State Department of Insurance). The parties agree that the six-year statute of limitations for contract actions is applicable to the instant case (CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). Consequently, the statute of limitations bars any claim that accrued prior to August 29, 2001.

In order to make its prima facie showing, defendant was required, inter alia, to establish the date when the cause of action accrued (see Swift v New York Med. Coll., 25 AD3d 686 [2006]), i.e., when plaintiff possessed "a legal right to demand payment" (Matter of Prote Contr. Co. v Board of Educ. of City of NY, 198 AD2d 418, 420 [1993]). In the no-fault context, the cause of action accrues when payment of no-fault benefits becomes "overdue" (see Insurance Law § 5106 [a]; see also Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987]; New Era Acupuncture, P.C. v MVAIC, 18 Misc 3d 139[A], 2008 NY Slip Op 50353[U] [App Term, 2d & 11th Jud Dists 2008]).

Upon a motion to dismiss pursuant to CPLR 3211 (a) (5), a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff (see Island ADC, Inc., 49 AD3d 815; Sabadie v Burke, 47 AD3d 913 [2008]). While plaintiff did not explicitly set forth in its complaint the date when each claim form was submitted or when each claim sought therein accrued, it averred that the accident occurred "on or about October 23, 2000," that the claim forms in question were "timely submitted to the Defendant," and that defendant "did not timely deny" the claims "nor did it timely request verification." In moving to dismiss, defendant argued that even if all of plaintiff's assertions are true, the action is untimely.

Defendant was required to "either pay or deny the claims in whole or in part" within 30 days after the claim forms were received (see former Insurance Department Regulations [11 NYCRR] § 65.15 [g] [3]).

There are, therefore, two methods to compute the accrual date in the case at bar: the first is measured, in part, from the last date on which written notice of the accident must be given to the insurer, and the second is measured, in part, from the date the services were rendered. Since the accident occurred on or about October 23, 2000, and the action was commenced on ...


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