December 2, 2022

Greenway Med. Supply Corp. v Repwest Ins. Co. (2022 NY Slip Op 51269(U))

https://www.beynensonlaw.com/case-law/greenway-med-supply-corp-v-repwest-ins-co-2022-ny-slip-op51269u/

Court: Appellate Term, Second Department
Decided: December 2, 2022
Citation: 2022 NY Slip Op 51269(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues

Cite as

Greenway Med. Supply Corp. v Repwest Ins. Co., 2022 NY Slip Op 51269(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

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.

The defendant claims handler established that it had issued no automobile policy covering the accident and owed no no-fault coverage. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted its cross motion for summary judgment dismissing the provider's complaint. The record showed that the vehicle was owned and self-insured by a rental company, while the defendant only processed claims on that company's behalf. The Civil Court, Kings County, had denied dismissal based on a perceived factual issue concerning the limitations period. The appellate court also explained that CPLR 213 (2)'s six-year contract period applies to claims against insurers, whereas CPLR 214 (2)'s three-year period would govern any claims accruing against the self-insurer upon submission of bills.

Reported in New York Official Reports at Greenway Med. Supply Corp. v Repwest Ins. Co. (2022 NY Slip Op 51269(U))

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

Greenway Medical Supply Corp., as Assignee of Osorio Ernesto, Respondent,
against
Repwest Insurance Company, Appellant.

Husch Blackwell, LLP (Matthew A. Sarles of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered September 4, 2019. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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 of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint on the ground that there was an issue of fact as to whether the three-year limitation period of CPLR 214 (2) was applicable.

A review of the record reveals that defendant demonstrated, as a matter of law, that the vehicle in which plaintiff’s assignor was a passenger when the accident occurred was owned by U-Haul, Inc.; that the vehicle was self-insured by U-Haul, Inc.; that defendant did not insure the subject vehicle; and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. Thus, the record establishes that there is no coverage for no-fault benefits from defendant as defendant had not issued an automobile insurance policy which would cover [*2]the underlying accident (see Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co., 69 Misc 3d 144[A], 2020 NY Slip Op 51379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Parisien v Gallagher Bassett Servs., 66 Misc 3d 128[A], 2019 NY Slip Op 52040[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). We note that, while the six-year statute of limitations for contracts is applicable to no-fault claims against an insurer (see CPLR 213 [2]), to the extent any causes of action accrued against the self-insurer upon plaintiff’s submission of bills in 2010, the three-year statute of limitations set forth in CPLR 214 (2) would apply (see Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]; Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51206[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51205[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; S & R Med., P.C. v NYCTA-MABSTOA, 61 Misc 3d 138[A], 2018 NY Slip Op 51582[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 2, 2022

Cited in this decision

Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co. (2020 NY Slip Op 51379(U))A lack-of-coverage defense is not precluded by defects in, or untimeliness of, an insurer's denial of claim.
Contact Chiropractic, P.C. v New York City Tr. Auth. (2018 NY Slip Op 03093)No-fault claims against a self-insurer are subject to the three-year statute of limitations under CPLR 214 (2).
Midwood Total Rehab Med., P.C. v Republic W. Ins. Co. (2021 NY Slip Op 51206(U))The provider's action was untimely under the three-year limitations period for claims involving a self-insured vehicle.
Midwood Total Rehab Med., P.C. v Republic W. Ins. Co. (2021 NY Slip Op 51205(U))The provider's action against the self-insured vehicle owner's claims handler was barred by the three-year statute of limitations.

Cited by

A label shows how the later decision treated this one.

Blano Med., P.C. v Hertz Co. (2023 NY Slip Op 51406(U)) FollowedThe defendant failed to prove that another entity was the proper defendant or that it was self-insured, defeating amendment and dismissal.

Similar decisions

Greenway Med. Supply Corp. v Dollar Rent A Car (2021 NY Slip Op 50439(U))The defendant established lack of coverage, and its out-of-state affidavit's missing certificate of conformity was not fatal.
Greenway Med. Supply Corp. v Hartford Ins. Co. (2017 NY Slip Op 51262(U))The insurer's proof established timely denials, resolving the sole remaining issue on its IME nonappearance defense.
Greenway Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50039(U))A default declaratory order that has not been vacated may bar a provider's no-fault action under res judicata.
Greenway Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51236(U))The defendant's summary judgment dismissing the complaint was affirmed on its defense of untimely accident notice.
Healthway Med. Care, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51786(U))The provider's claims were barred by res judicata because a prior declaration resolved coverage for the same accident between the same parties.