December 15, 2009

Chester Med. Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 52598(U))

Headnote

The relevant facts the court considered in this case was that the plaintiff, a medical provider, filed a complaint to recover no-fault benefits for a claim submitted to the defendant in 2000. The defendant moved to dismiss the complaint on the grounds that it was time-barred by the six-year statute of limitations. The main issue decided by the court was whether the defendant's second pre-answer motion to dismiss was procedurally defective, as the plaintiff argued. The holding of the court was that a subsequent motion to dismiss pursuant to CPLR 3211 (a) does not violate the single motion rule set forth in CPLR 3211 (e), and the order granting the defendant's motion to dismiss the complaint was affirmed.

Reported in New York Official Reports at Chester Med. Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 52598(U))

Chester Med. Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 52598(U)) [*1]

Chester Med. Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co.

2009 NY Slip Op 52598(U) [26 Misc 3d 126(A)]

Decided on December 15, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : GOLIA, J.P., PESCE and WESTON, JJ
2008-1574 K C.

Chester Medical Diagnostic, P.C. a/a/o FELIX ESTEBEZ, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered December 11, 2007. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed without costs.

On November 21, 2006, plaintiff, a provider, commenced the instant action to recover assigned first-party no-fault benefits for a claim which was submitted to defendant on April 28, 2000. Defendant moved to dismiss the complaint on the ground that it was time-barred by the six-year statute of limitations. Plaintiff opposed defendant’s motion arguing that since this was defendant’s second pre-answer motion to dismiss, it was procedurally defective. The Civil Court granted defendant’s motion and dismissed the complaint. The instant appeal by plaintiff ensued.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) may be made at any time before service of the responsive pleading is required but no more than one such motion shall be permitted (see CPLR 3211 [e]). Where, as here, the original motion to dismiss the complaint pursuant to CPLR 3211 (a) is not decided on the merits, a subsequent motion to dismiss pursuant to CPLR 3211 (a) does not violate the single motion rule set forth in CPLR 3211 (e) (see Curtis v Chetrit, 243 AD2d 423 [1997]; Breiterman v Haidt, 4 Misc 3d 130[A], 2004 NY Slip Op 50683[U] [App Term, 1st Dept 2004]). Plaintiff’s remaining contention is not preserved for appellate review.

Accordingly, the order granting defendant’s motion to dismiss the complaint is affirmed.

Golia, J.P., Pesce and Weston, JJ., concur. [*2]
Decision Date: December 15, 2009