July 7, 2011

DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51304(U))

https://www.beynensonlaw.com/case-law/djs-med-supplies-inc-v-clarendon-natl-ins-co-2011-ny-slip-op51304u/

Court: Appellate Term, Second Department
Decided: July 7, 2011
Citation: 2011 NY Slip Op 51304(U) · 32 Misc 3d 129(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Later treatment: Followed in 8 later decisions (see Cited by)
Issues: Statute of limitations Verification requests
Legal questions: No-fault statute of limitations (see the maps)

Cite as

DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129(A), 2011 NY Slip Op 51304(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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.

A no-fault claim accrues 30 days after the insurer receives it; a later denial does not postpone accrual. Under Insurance Law § 5106 (a), 11 NYCRR 65-3.8, and CPLR 213 (2), the provider's cause of action accrued on September 28, 2002, and its October 20, 2008 action exceeded the six-year limitations period. The insurer did not have to establish the absence of verification tolling as part of its initial showing. The provider supplied no evidence of timely, proper verification requests raising a factual issue and could not collaterally estop the insurer from asserting limitations. The Appellate Term, Second Department, reversed the order and granted the insurer's motion to dismiss under CPLR 3211 (a) (5).

Reported in New York Official Reports at DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51304(U))

[*1]

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

2011 NY Slip Op 51304(U) [32 Misc 3d 129(A)]

Decided on July 7, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-2196 Q C.

DJS Medical Supplies, Inc. as Assignee of JASON RIVERA, Respondent,
against
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.

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. [*2]

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

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 untimely under the six-year contract period, because the claim accrued 30 days after receipt in August 2002 and a later denial did not postpone accrual.

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

Of the 56 decisions on this question in the Second Department courts and the Court of Appeals, 21 (this one included) are in the same category.

Cited in this decision

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

Kings Highway Diagnostic Imaging, P.C. v MVAIC (2008 NY Slip Op 28157) FollowedA provider's claim against MVAIC was time-barred because untimely verification did not postpone accrual.
Boulevard Multispec Med., P.C. v MVAIC (2008 NY Slip Op 50872(U)) FollowedA provider's claim against MVAIC was time-barred because a verification request after payment became overdue did not postpone accrual.
Mandarino v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 01693) FollowedA provider's action to recover no-fault benefits under an insurance policy is governed by the six-year contractual limitations period.
Shtarkman v MVAIC (2008 NY Slip Op 51447(U)) FollowedThe provider's claim against MVAIC was barred by the three-year limitations period measured from the pleaded payment due date.

Cited by

A label shows how the later decision treated this one.

New Millennium Med. Imaging, P.C. v GEICO (2022 NY Slip Op 22300) FollowedA no-fault claim accrues upon receipt of a denial received before the claim determination period expires.
A.M. Med., P.C. v Continental Ins. Co. (2015 NY Slip Op 50389(U)) FollowedThe provider's action against the appealing insurer was untimely because it began more than six years after the no-fault claims accrued.
Vincent Med. Servs., P.C. v Omni Indem. Co. (2022 NY Slip Op 50141(U)) FollowedThe provider's action was time-barred because it was commenced more than six years after payment became due on its claims.
ZZ Acupuncture, P.C. v Kemper Ins. Co. (2024 NY Slip Op 51205(U)) FollowedA no-fault claim accrues 30 days after the insurer receives it, absent tolling or proof that the claimant received an earlier denial.
Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co. (2019 NY Slip Op 52028(U)) FollowedThe provider's action was untimely because its claim accrued 30 days after the insurer received the bill, a showing the provider did not rebut.
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.
Action Potiential Chiropractic, PC v Grange Mut. Cas. Ins. Co. (2021 NY Slip Op 51306(U)) FollowedThe provider failed to justify substituting a new insurer after the limitations period expired or to establish relation back.
Arguelles M.D., P.C. v American Ind. Ins. Co. (2022 NY Slip Op 50926(U)) FollowedThe provider's action was time-barred because its submission evidence placed the payment due date more than six years before suit.
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.
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.

Similar decisions

D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2010 NY Slip Op 50649(U))The provider's action was premature because requested verification remained outstanding despite follow-up requests mailed on the 30th day.
Triangle R, Inc. v Clarendon Ins. Co. (2010 NY Slip Op 52159(U))The provider's action was premature because timely verification requests remained unanswered when it sued.
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.
Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51351(U))The insurer established payment of one claim, untimely submission of three claims, and lack of medical necessity for the remaining services.
Jesa Med. Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 50052(U))The provider's action was premature because requested verification remained outstanding and the insurer's time to pay or deny had not begun.