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Hellander v. Metlife Auto & Home Insurance Co.

Civil Court of the City of New York, Richmond County

November 6, 2013

Richard A. Hellander, M.D., P.C. Subrogee of BYAN FRIEND, Plaintiff,
v.
Metlife Auto and HOME INSURANCE COMPANY, Defendant RICHARD A. HELLANDER, M.D., P.C. Subrogee of MAKANJ-SAM ADEDAPO Plaintiff, METLIFE AUTO and HOME INSURANCE COMPANY, Defendant RICHARD A. HELLANDER, M.D., P.C. Subrogee of BORIS MUSHYAKOV, Plaintiff, METLIFE AUTO and HOME INSURANCE COMPANY, Defendant RICHARD A. HELLANDER, M.D., P.C. Subrogee of MARIA QUINONES, Plaintiff, METLIFE AUTO and HOME INSURANCE COMPANY, Defendant RICHARD A. HELLANDER, M.D., P.C. Subrogee of CATHY TERSTENYAK Plaintiff, METLIFE AUTO and HOME INSURANCE COMPANY, Defendant A. HELLANDER, M.D., P.C. Subrogee of XIOMARA MEDRANO, Plaintiff, METROPOLITAN PROPERTY and CASUALTY INS. CO., Defendant. PRECISION DIAGNOSTIC IMAGING, P.C. Subrogee of SIMON ZLOTNIKOV, Plaintiff, INFINITY INSURANCE CO., Defendant.

Unpublished Opinion

Attorney for Plaintiff Joseph Sparacio Staten Island, NY

Attorney for Defendants Freiberg & Peck

Philip S. Straniere, J.

The plaintiff in each of these seven cases commenced actions in Civil Court seeking to be compensated for first party benefits provided to insureds of each defendant insurance carrier pursuant to New York's No-Fault Law (Insurance Law Article 51).

Currently before the court are separate motions filed by each defendant in each action to dismiss the complaint. Because the motions involve common questions of law and fact and the same independent counsel is representing all of the plaintiffs and all of the defendants, the parties agreed that argument in regard to each motion should be heard together. Plaintiffs filed opposition to each motion and defendants a reply.

The common issue in all of these cases involves "timing. " As Jimmy Jones noted in "Good Timing:"

Oh, you need timin' a tick a tick a tick a Good timin' a tock a tock a tock a Timin' is the thing it's true Good timin' brought me to you.

As set forth herein, the failure of the parties to focus on "timing" has placed the court in the "No-Fault World" equivalent of a "time warp [1], " as the plaintiff's use of CPLR §312-a, that is, personal service by mail, for summons and complaints issued in 2004 and earlier, has resulted in a revisiting by the court of the recurring problems created by plaintiff's counsel's reliance on this procedure.

Plaintiffs apparently believing "time is on my side [2] " applies to this litigation, waited about six years, until 2010 to notice these matters for trial. On the other hand the defendants assert that the "time has come today [3] " is the proper standard requiring that the matters all be dismissed as untimely.

In retrospect, had plaintiff heeded the advice of "Hinesy" when he sang "Think of the Time I Save [4], " the court might not be addressing these issues again.

I'm a time study man, and a time study man can't waste time.

For a time study man to waste time is a crime....

But think of the time I save.

Case Time Lines:

In order to keep these matters in perspective it is necessary to set forth a time line of the procedural events in these cases.

1. Index #23250/10Richard Hellander MD, PC a/a/o Bryan Friend v. Metlife Auto & Home

Date of Summons & Complaint April 12, 2004

Date of Answer May 17, 2004

Summons & Complaint Filed November 5, 2010

Answer Filed November 5, 2010

Date of Notice of Trial January 20, 2011

Notice of Trial Filed February 22, 2011

Date of Motion to Dismiss February 21, 2011

Return Date of Motion March 24, 2011

Motion Argued October 24, 2013

2. Index#23390/10Richard Hellander MD, PC a/a/o Makanj-Sam Adedapo v. Metlife Auto & Home

Date of Summons & ComplaintMay 24, 2004

Date of Answer June 4, 2004

Summons & Complaint Filed November 8, 2010

Answer Filed November 8, 2010

Date of Notice of Trial January 20, 2011

Notice of Trial Filed February 22, 2011

Date of Motion to Dismiss February 21, 2011

Return Date of Motion March 24, 2011

Motion Argued October 24, 2013

3. Index#23402/10Richard Hellander MD, PC a/a/o Boris Mushyakov v. ...


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