December 22, 2021

BSS Med., P.C. v Metropolitan Prop. & Cas. Ins. (2021 NY Slip Op 51255(U))

https://www.beynensonlaw.com/case-law/bss-med-p-c-v-metropolitan-prop-cas-ins-2021-ny-slip-op51255u/

Court: Appellate Term, Second Department
Decided: December 22, 2021
Citation: 2021 NY Slip Op 51255(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

BSS Med., P.C. v Metropolitan Prop. & Cas. Ins., 2021 NY Slip Op 51255(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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Summary

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

A summary judgment motion served by mail is made upon mailing for purposes of CPLR 3212 (a)'s 120-day deadline. The provider filed its notice of trial on June 14, 2018, and the insurer served its dismissal motion on October 12, 2018. Under CPLR 2211 and 2103 (b) (2), that service was timely; the notice of trial was the Civil Court equivalent of a note of issue. The Appellate Term, Second Department, reversed the order denying the motion as untimely and remitted to the Civil Court for determination on the merits.

Reported in New York Official Reports at BSS Med., P.C. v Metropolitan Prop. & Cas. Ins. (2021 NY Slip Op 51255(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

BSS Medical, P.C., as Assignee of Carlton Holder and Keldon Frederick, Respondent,
against
Metropolitan Property and Casualty Ins., Appellant.

Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered October 7, 2019. The order denied as untimely defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff filed a notice of trial on June 14, 2018. On October 12, 2018, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion on the ground that defendant’s motion was untimely. By order entered October 7, 2019, the Civil Court denied defendant’s motion on the ground that it was untimely.

Contrary to plaintiff’s contention, defendant’s motion for summary judgment dismissing the complaint was not untimely under CPLR 3212 (a). CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and when a motion is served upon a party’s attorney by mail, service is complete upon mailing (see CPLR 2103 [b] [2]; Pietrafesa v Canestro, 130 AD3d 602 [2015]). Here, it is uncontroverted that the notice of trial, the Civil Court equivalent of a note of issue, was filed on June 14, 2018 [*2]and, thus, contrary to the Civil Court’s determination, defendant’s motion was timely when it was served on October 12, 2018.

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2021

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