February 11, 2014

Comprehensive Psychiatric Care, P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 50184(U))

Headnote

The court considered the timeliness of a cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) in a case involving an action to recover first-party no-fault benefits. The defendant in the case appealed from an order of the Civil Court that rejected its cross motion as untimely, despite the fact that it had been served in a timely manner according to a so-ordered stipulation. The main issue decided was whether the Civil Court erred in failing to consider the defendant's cross motion, and the holding of the case was that the order was reversed and the matter was remitted to the Civil Court for a determination of the merits of the defendant's cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

Reported in New York Official Reports at Comprehensive Psychiatric Care, P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 50184(U))

Comprehensive Psychiatric Care, P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 50184(U)) [*1]

Comprehensive Psychiatric Care, P.C. v Clarendon Natl. Ins. Co.

2014 NY Slip Op 50184(U) [42 Misc 3d 140(A)]

Decided on February 11, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2014

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

PRESENT: : ALIOTTA, J.P., PESCE and WESTON, JJ
2012-1031 K C.

Comprehensive Psychiatric Care, P.C. as Assignee of AMBIORIX GUZMAN and KELVIN MARTE,
against
Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 30, 2011. The order, insofar as appealed from as limited by the brief, denied, as untimely, defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a determination of the merits of defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as “rejected as untimely” defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5). As it is undisputed by the parties that defendant’s cross motion was timely pursuant to a so-ordered stipulation setting forth the dates by which any cross motion had to be served, the Civil Court erred in failing to consider defendant’s cross motion.

Accordingly, the order, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a determination of the merits of defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

Aliotta, J.P., Pesce and Weston, JJ., concur.
Decision Date: February 11, 2014