June 27, 2005

State Farm Mut. Auto. Ins. Co. v Karpen (2005 NYSlipOp 51032(U))

https://www.beynensonlaw.com/case-law/state-farm-mut-auto-ins-co-v-karpen-2005-nyslipop-51032u/

Court: Appellate Term, Second Department
Decided: June 27, 2005
Citation: 2005 NY Slip Op 51032(U)
Posture: Summary judgment
Issues: Statute of limitations Jurisdiction and service

Cite as

State Farm Mut. Auto. Ins. Co. v Karpen, 2005 NY Slip Op 51032(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2005)

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.

An insurer's subrogation action for payments exceeding no-fault benefits was time-barred because it began over three years after the accident. The insurer sought reimbursement from the defendant and asserted that an earlier summons and complaint had been served before the limitations period expired. The Appellate Term, Second Department, declined to grant its cross motion under UDCA 411 to file proof of that service nunc pro tunc and affirmed summary judgment dismissing the complaint. Under Allstate Ins. Co. v Stein, the subrogee acquired only the insured's rights, and limitations ran from the accident. Insurance Law § 5105, governing settlements between insurers, did not apply.

Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Karpen (2005 NYSlipOp 51032(U))

[*1]

State Farm Mut. Auto. Ins. Co. v Karpen

2005 NYSlipOp 51032(U)

Decided on June 27, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: RUDOLPH, P.J., McCABE and COVELLO, JJ.
2004-1626 S C

State Farm Mutual Automobile Insurance Co., a/a/o Roy C. Quinn, Appellant,
against
Seth Karpen, Respondent.

Appeal by plaintiff from an order of the District Court, Suffolk County (T. Bean, J.), dated September 20, 2004, granting defendant’s motion for summary judgment dismissing the complaint.

Order unanimously affirmed without costs.

As subrogee, plaintiff commenced this action on or about May 26, 2004 to recover monies paid to its insured for amounts in excess of no-fault benefits, for injuries arising out of an accident occurring on May 2, 2001. Contrary to the determination of the court below, Insurance Law § 5105 which pertains to “Settlement between insurers” has no application herein (see Federal Ins. Co. v Hansen, 162 AD2d 224 [1990]).

After defendant moved for summary judgment dismissing the complaint on the ground that the instant action was, inter alia, barred by the statute of limitations, plaintiff asserted that it had previously served defendant with a summons and complaint in April 2004, by which it sought to recover the same excess no-fault benefits, and cross-moved
for leave to file the proof of service for its April summons and complaint nunc pro tunc
(see UDCA 411). Although the court below did not address the cross motion in its written decision, upon a review of the record, we find that under the circumstances herein, said cross motion should not be granted. Inasmuch as the subrogee acquires only the rights that the subrogor had, the statute of limitations begins to run from the date of the accident (see Allstate Ins. Co. v Stein, 1NY3d 416 [2004]). Since the instant action was commenced more than three years after the accident, the action was time-barred and the complaint was properly dismissed.
Decision Date: June 27, 2005

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