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Wexford Medical, P.C. v. Commerce Ins. Co.

Supreme Court of New York, First Department

July 19, 2013

WEXFORD MEDICAL, P.C., a/a/o Eldin Avila, Plaintiff-Appellant,
v.
COMMERCE INSURANCE COMPANY, Defendant-Appellant. No. 570928/12.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Elizabeth A. Taylor, J.), dated November 23, 2010, which denied its motion to dismiss plaintiff's action as time-barred.

Present: LOWE, III, P.J., SHULMAN, SCHOENFELD, JJ.

PER CURIAM.

Order (Elizabeth A. Taylor, J.), dated November 23, 2010, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Even accepting plaintiff's allegations as true, and according them the benefit of every favorable inference, as required on a motion to dismiss pursuant to CPLR 3211(a)(5) ( see Island ADC, Inc ., 49 A.D.3d 815 [2008] ), we conclude that this action for assigned first-party no-fault benefits is time-barred. The complaint alleges that " health services" were rendered to the assignor on January 9, 2003, that a bill for such services was " timely received" by defendant insurer, and that defendant failed to properly deny the bill within 30 days or request additional verification. Inasmuch as plaintiff was required to submit the proof of claim no later than 45 days after the services were rendered ( see 11 NYCRR 65-1.1[d]; New York & Presbyt. Hosp. v. Country-Wide Ins. Co., 17 N.Y.3d 586, 589-590 [2011] ), and the claim accrued 30 days thereafter ( see Matter of Travelers Indem. Co. of Conn. v. Glenwood Med., P.C., 48 A.D.3d 319 [2008] ), this action, commenced on September 18, 2009, is barred by the governing six-year statute of limitations ( id; Flatlands Acupuncture, P.C. v. Fireman's Fund Ins. Co., 32 Misc.3d 17 [2011] ).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


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