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Roman Chiropractic, P.C. A/A/O Raul Rosario, Appellant v. Lumbermens Mutual Casualty Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department


May 10, 2011

ROMAN CHIROPRACTIC, P.C. A/A/O RAUL ROSARIO, APPELLANT,
v.
LUMBERMENS MUTUAL CASUALTY COMPANY, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered January 15, 2009.

Roman Chiropractic, P.C. v Lumbermens Mut. Cas. Co.

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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 10, 2011

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

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

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied.

Plaintiff commenced an action in Civil Court, Queens County, to recover assigned first-party no-fault benefits for services provided to its assignor from November 9, 2001 through March 29, 2002. Issue was joined in July 2003. In August 2007, defendant served plaintiff with a 90-day demand pursuant to CPLR 3216 (b) (3). On papers dated January 9, 2008 and returnable February 4, 2008, defendant moved to dismiss the Queens County action for want of prosecution (CPLR 3216 [a]). On January 10, 2008, plaintiff, without responding to the motion to dismiss, commenced the instant action by filing a summons and complaint (see CCA 400) in Civil Court, Kings County, based on the same cause of action. On February 4, 2008, the Civil Court (Diane A. Lebedeff, J.) granted the motion to dismiss the Queens County action, on default, but without any indication that the dismissal was on the merits (see CPLR 3216 [a]). Defendant subsequently moved for summary judgment dismissing the complaint in the instant action on the ground of res judicata, citing the Queens County dismissal order, and on the ground that the action was barred by the statute of limitations. The Civil Court granted the motion, and plaintiff appeals.

Since the dismissal order did not "specif[y] otherwise" (CPLR 3216 [a]), the dismissal was not "on the merits" or "with prejudice" (Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 380 [1999]; see e.g. Gallo v Teplitz Tri-State Recycling, 254 AD2d 253, 254 [1998]) and does not preclude, on res judicata grounds, a new action between the same parties on the same causes of action (e.g. Greenberg v De Hart, 4 NY2d 511, 516-517 [1958]; San Filippo v Adler, 278 AD2d 402 [2000]; see also Mudry v Giannattasio, 8 AD3d 455, 456 [2004]; Morales v New York City Hous. Auth., 302 AD2d 571 [2003]; Mays v Whitfield, 282 AD2d 721 [2001]). Consequently, the Civil Court erred to the extent that it dismissed the instant action because the Queens County action had been dismissed on default.

Defendant also failed to establish the alternate ground upon which it relied in moving for summary judgment, that the action is barred by the statute of limitations (see CPLR 213 [2]). A no-fault cause of action accrues when payment of no-fault benefits becomes "overdue" (see Insurance Law § 5106 [a]; see also Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319, 320 [2008]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]; Acupuncture Works, P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50646[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). However, in the Civil Court, defendant did not offer its denial of claims forms or any other proof of facts regarding the timeliness of the action of January 10, 2008 in relation to the denial of claims or the lapse of the 30-day "pay or deny" rule. Accordingly, defendant failed to meet its burden to establish that the cause of action accrued on any of plaintiff's seven claims more than six years prior to the commencement of this action (e.g. Island ADC, Inc. v Baldassano Architectural Group, 49 AD3d 815, 816 [2008]).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

The decision and order of this court entered herein on June 4, 2010 (27 Misc 3d 142[A], 2010 NY Slip Op 51000[U]) are hereby recalled and vacated (see motion decided simultaneously herewith).

Pesce, P.J., and Weston, J., concur.

Golia, J., concurs in a separate memorandum. Golia, J., concurs with the result only, in the following memorandum:

Although I am in agreement that defendant failed to establish the actual dates that the underlying claims were filed, I would find that plaintiff's papers similarly fail to set forth the dates when the claims were filed.

It should be noted that those dates are essential to establish plaintiff's prima facie case as well as to set forth the cut-off date as regards the accrual of interest.

Decision Date: May 10, 2011

20110510

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