November 13, 2020

Cautious Care Med., P.C. v Omni Indem. Co. (2020 NY Slip Op 51384(U))

https://www.beynensonlaw.com/case-law/cautious-care-med-p-c-v-omni-indem-co-2020-ny-slip-op-51384u/

Court: Appellate Term, Second Department
Decided: November 13, 2020
Citation: 2020 NY Slip Op 51384(U) · 69 Misc 3d 145(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Issues: Statute of limitations
Legal questions: No-fault statute of limitations (see the maps)

Cite as

Cautious Care Med., P.C. v Omni Indem. Co., 69 Misc 3d 145(A), 2020 NY Slip Op 51384(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 first-party no-fault cause of action accrues 30 days after the insurer receives the claim and carries a six-year limitations period. The insurer moved to dismiss the provider's assigned-benefits action under CPLR 3211 (a) (5). Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8, the cause of action accrued after the 30-day payment period, and CPLR 213 (2) supplied the contract limitations period. The record established commencement more than six years after accrual, and the provider failed to raise a factual issue concerning timeliness. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion dismissing the complaint as time-barred.

Reported in New York Official Reports at Cautious Care Med., P.C. v Omni Indem. Co. (2020 NY Slip Op 51384(U))

[*1]

Cautious Care Med., P.C. v Omni Indem. Co.

2020 NY Slip Op 51384(U) [69 Misc 3d 145(A)]

Decided on November 13, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2019-330 K C

Cautious Care Medical, P.C., as Assignee of Butler, Jacobi, Respondent,

against

Omni Indemnity Company, Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered December 18, 2018. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought to dismiss the complaint pursuant to CPLR 3211 (a) (5), on the ground that the action is barred by the statute of limitations.

A first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; 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]; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 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 Dept, 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]). As defendant correctly argues, the record establishes that the action was not commenced until more than six years after the cause of action accrued (see Oleg Barshay, D.C., [*2]P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness. Consequently, the action was barred by the six-year statute of limitations set forth in CPLR 213 (2).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion to dismiss the complaint is granted.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020

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)

Applied the six-year contract period of CPLR 213 (2) to the claim against the insurer and dismissed it because the action was commenced more than six years after the claim accrued, 30 days after receipt.

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.

DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51304(U))A no-fault claim accrues 30 days after the insurer receives it; a later denial does not postpone accrual.
Kings Highway Diagnostic Imaging, P.C. v MVAIC (2008 NY Slip Op 28157)A 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))A provider's claim against MVAIC was time-barred because a verification request after payment became overdue did not postpone accrual.
Oleg Barshay, D.C., P.C. v State Farm Ins. Co. (2006 NY Slip Op 26496) FollowedA provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.

Cited by

New Millennium Med. Imaging, P.C. v GEICO (2022 NY Slip Op 22300)A no-fault claim accrues upon receipt of a denial received before the claim determination period expires.

Similar decisions

Vincent Med. Servs., P.C. v Omni Indem. Co. (2022 NY Slip Op 50141(U))The provider's action was time-barred because it was commenced more than six years after payment became due on its claims.
Arguelles M.D., P.C. v American Ind. Ins. Co. (2022 NY Slip Op 50926(U))The provider's action was time-barred because its submission evidence placed the payment due date more than six years before suit.
JCC Med., P.C. v Omni Indem. Co. (2021 NY Slip Op 51246(U))The insurer's summary judgment motion based on its nonissuance of a policy covering the accident vehicle was granted on appeal.
Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2020 NY Slip Op 51118(U))The provider failed to obtain personal jurisdiction over the insurers because it did not establish completed mailed service or timely alternative service.
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.