July 12, 2019

Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. (2019 NY Slip Op 51172(U))

https://www.beynensonlaw.com/case-law/jamaica-dedicated-med-care-p-c-v-usaa-cas-ins-co-2019-ny-slip-op51172u/

Court: Appellate Term, Second Department
Decided: July 12, 2019
Citation: 2019 NY Slip Op 51172(U) · 64 Misc 3d 138(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Issues: Jurisdiction and service

Cite as

Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co., 64 Misc 3d 138(A), 2019 NY Slip Op 51172(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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Summary

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

The provider's CPLR 306-b extension request was denied, and dismissal under CPLR 3211 (a) (8) was affirmed. Service occurred beyond the 120-day period, and the provider sought to deem it timely. The Appellate Term, Second Department, affirmed denial of the extension and the insurer's jurisdictional dismissal for the reasons stated in the companion appeal decided the same day, No. 2017-2251 K C.

Reported in New York Official Reports at Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. (2019 NY Slip Op 51172(U))

[*1]

Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co.

2019 NY Slip Op 51172(U) [64 Misc 3d 138(A)]

Decided on July 12, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2019

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

PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-2258 K C

Jamaica Dedicated Medical Care, P.C., as Assignee of Kimberly Douglas, Appellant,
against
USAA Casualty Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Anita Nissan Yehuda and Joseph Schwarzenberg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 1, 2016. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), and denied plaintiff’s “cross” motion, pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the service on December 31, 2015 timely.

ORDERED that the order is affirmed, without costs.

Plaintiff, a provider, commenced this action to recover assigned first-party no-fault benefits by filing a summons and complaint in the Civil Court on July 14, 2015 (see CCA 400). However, plaintiff did not serve these documents on defendant until December 31, 2015, which was beyond the 120-day time period allotted by CPLR 306-b (see CCA 403). By notice of motion returnable on February 25, 2016, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8), and, by notice of motion returnable on December 1, 2016, plaintiff “cross-moved,” pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the December 31, 2015 service timely. By order dated December 1, 2016, the Civil Court granted defendant’s motion and denied plaintiff’s “cross” motion.

For the reasons stated in Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2017-2251 K C], decided herewith), the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019

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