July 19, 2013

Wexford Med., P.C. v Commerce Ins. Co. (2013 NY Slip Op 51193(U))

https://www.beynensonlaw.com/case-law/wexford-med-p-c-v-commerce-ins-co-2013-ny-slip-op51193u/

Court: Appellate Term, First Department
Decided: July 19, 2013
Citation: 2013 NY Slip Op 51193(U) · 40 Misc 3d 133(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Statute of limitations
Legal questions: No-fault statute of limitations (see the maps)

Cite as

Wexford Med., P.C. v Commerce Ins. Co., 40 Misc 3d 133(A), 2013 NY Slip Op 51193(U) (App Term, 1st Dept 2013)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's action was time-barred because its pleaded claim accrued more than six years before commencement. The complaint alleged services on January 9, 2003, timely receipt of the bill, and no proper denial or verification request within 30 days. Under 11 NYCRR 65-1.1 (d), proof of claim was due within 45 days after the services, and the claim accrued 30 days thereafter. Even accepting the allegations as true and granting favorable inferences under CPLR 3211 (a) (5), the September 18, 2009 commencement was untimely. The Appellate Term, First Department, reversed the order, granted the insurer's dismissal motion, and dismissed the complaint.

Reported in New York Official Reports at Wexford Med., P.C. v Commerce Ins. Co. (2013 NY Slip Op 51193(U))

[*1]

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

2013 NY Slip Op 51193(U) [40 Misc 3d 133(A)]

Decided on July 19, 2013

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Schoenfeld, JJ
570928/12.

Wexford Medical, P.C., a/a/o Eldin Avila, Plaintiff-Appellant,
against
Commerce Insurance Company, Defendant-Appellant.

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.

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 AD3d 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 NY3d 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 AD3d 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.
Decision Date: July 19, 2013

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No-fault statute of limitations

Open the full map

Which limitations period governs a first-party no-fault claim against an insurer, self-insurer or MVAIC: six or three years?

This decision: Claim against an insurer under a policy carries the six-year contract period (CPLR 213 [2]) (rules on the question, but another ground decided the case)

Held the action against the insurer time-barred under the governing six-year period, because the claim accrued 30 days after the latest permissible claim submission in early 2003 and suit began in September 2009.

Six years: insurerSix years: self-insurerThree years: self-insurerThree years: MVAICThis decisionCites it or cited by itCited or followed

Of the 11 decisions on this question in the First Department courts and the Court of Appeals, 3 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

New York & Presbyt. Hosp. v Country-Wide Ins. Co. (2011 NY Slip Op 07149) FollowedA timely proof of claim does not satisfy the 30-day accident-notice requirement when submitted after that period expires.
Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C. (2008 NY Slip Op 01598) FollowedAn insurer's reconsideration of a denied no-fault claim does not extend the claim's accrual date for statute-of-limitations purposes.
Flatlands Acupuncture, P.C. v Fireman’s Fund Ins. Co. (2011 NY Slip Op 21133) FollowedA no-fault claim accrues for limitations purposes when payment becomes overdue.

Cited by

A label shows how the later decision treated this one.

Chiropractic Life, P.C. v Unitrin Advantage Ins. Co. (2021 NY Slip Op 51221(U)) FollowedThe insurer failed to establish the claim's accrual date and could not obtain dismissal on limitations grounds.

Similar decisions

EBM Med. Health Care, P.C. v Amica Mut. Ins. Co. (2011 NY Slip Op 51720(U))The insurer failed to establish that the provider's no-fault action was barred by the six-year contract statute of limitations.
Cautious Care Med., P.C. v Omni Indem. Co. (2020 NY Slip Op 51384(U))A first-party no-fault cause of action accrues 30 days after the insurer receives the claim and carries a six-year limitations period.
Dyckman Med. Diagnostic/Treatment, P.C. v Granite State Ins. Co. (2014 NY Slip Op 51026(U))The insurer failed to prove its limitations defense because its conclusory denial of receipt did not rebut the affidavit of service.
Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co. (2013 NY Slip Op 50900(U))The insurer failed to establish a limitations bar because service commenced the action within six years and late filing received nunc pro tunc effect.
Sheepshead Bay Oral Surgery, PLLC v Unitrin Direct Ins. Co. (2019 NY Slip Op 51058(U))The provider's no-fault action was untimely because it was commenced more than six years after accrual.