Arguelles, M.D., P.C. v AIG Natl. Ins. Co. (2025 NY Slip Op 51142(U))

Law Office of David Paul Horowitz, PLLC (David Paul Horowitz and Richard Rozhik of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper and Argyria Kehagias of counsel), for respondent.

Appeal by permission from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), dated December 9, 2021. The order granted defendant’s oral motion to dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, defendant’s motion to dismiss the complaint is denied and the matter is remitted to the Civil Court for all further proceedings.

After this action by a provider to recover assigned first-party no-fault benefits commenced, the parties entered into a stipulation dated September 24, 2009 which provided that, if plaintiff did not receive payment as set forth in the stipulation within 30 days, plaintiff could enter judgment for the amount demanded in the complaint without further notice. In 2019, plaintiff moved to enter judgment pursuant to the stipulation. After the unopposed motion was granted (Lorna J. McAllister, J.), a judgment was entered in favor of plaintiff. Defendant moved to vacate the judgment, contending, among other things, that it had not received plaintiff’s motion to enter a judgment and that it had timely paid the amounts set forth in the stipulation. The Civil Court (Rupert V. Barry, J.) granted defendant’s motion to vacate the default judgment, finding that defendant had not received plaintiff’s motion seeking entry of the judgment, and ordered a hearing to determine whether defendant had complied with the stipulation. When the parties appeared for the hearing, defendant orally moved to dismiss plaintiff’s claim on the ground that the claim to recover upon the stipulation was barred by the statute of limitations. By order dated December 9, 2021, the Civil Court (Rupert V. Barry, J.) granted defendant’s oral motion to dismiss the complaint, finding that, “as recited in CPLR § 213 (1), Plaintiff needed to have commenced its action ‘within six years’ . . . [but] Plaintiff commenced [this] action to enforce its settlement agreement outside the 6 years statute of limitations.” Plaintiff appeals, by permission [*2](Arguelles, M.D., P.C. v AIG Natl. Ins. Co., 2024 NY Slip Op 76031[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]), from the December 9, 2021 order.

“The parties’ [2009] stipulation expressly permitted [plaintiff] to apply to the court for a judgment based upon any future default without any time limits (see Marine Midland Bank v Worldwide Industrial Corp., 307 AD2d 221 [2003])” (Cook v Greenbaum, 18 AD3d 416, 417-418 [2005]). “Had respondents desired to impose a time limit on the enforcement of their obligations under the stipulation, they had only to incorporate the appropriate language into their agreement” (Marine Midland Bank, 307 AD2d at 222). To the extent defendant contends that the order should be affirmed pursuant to CPLR 3215 (c) because plaintiff did not seek entry of the judgment within one year of the alleged default, such a contention lacks merit as “[e]ntry of a default judgment for failure to comply with a stipulation of settlement is specifically provided for by CPLR 3215 (i) (1), which contains no time limit for entering such judgment” (id.).

Accordingly, the order is reversed, defendant’s motion to dismiss the complaint is denied and the matter is remitted to the Civil Court for all further proceedings.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.