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Djs Medical Supplies, Inc. As Assignee of Jason Rivera v. Clarendon National Insurance Co

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


July 7, 2011

DJS MEDICAL SUPPLIES, INC. AS ASSIGNEE OF JASON RIVERA,
RESPONDENT,
v.
CLARENDON NATIONAL INSURANCE CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Dianne A. Lebedeff, J.), entered June 5, 2009. The order denied defendant's motion to dismiss the complaint.

DJS Med. Supplies, Inc. v. Clarendon Natl. Ins. Co.

Appellate Term, Second Department 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2011

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

ORDERED that the order is reversed, without costs, and defendant's motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved 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 denied the motion.

A first-party no-fault cause of action accrues 30 days after the insurer's receipt of the claim (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65-3.8; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d & 11th Jud Dists 2008]; Boulevard Multispec Med., P.C. v MVAIC, 19 Misc 3d 138[A], 2008 NY Slip Op 50872[U] [App Term, 2d & 11th Jud Dists 2008]). The six-year statute of limitations for contract actions is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). As defendant has established receipt of the claim form in question on August 29, 2002, it correctly argues that plaintiff's cause of action accrued on September 28, 2002, and this action, which was commenced on October 20, 2008, is untimely.

Contrary to the holding of the Civil Court, defendant's denial of claim form, dated February 5, 2003, did not postpone the payment due date (see Kings Highway Diagnostic Imaging, P.C., 19 Misc 3d at 70). Moreover, defendant was not required, as part of its prima facie showing on its motion, to demonstrate that the payment due date was not tolled by a verification request (see Shtarkman v MVAIC, 20 Misc 3d 132[A], 2008 NY Slip Op 51447[U] [App Term, 2d & 11th Jud Dists 2008]). Plaintiff did not submit any evidence that defendant timely and properly requested verification, and therefore failed to raise a triable issue of fact as to whether defendant's time to pay or deny the claim had been tolled. Finally, there is no merit to plaintiff's contention that defendant should be collaterally estopped from asserting a statute of limitations defense.

Accordingly, defendant's motion to dismiss the complaint should have been granted.

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

Decision Date: July 07, 2011

20110707

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