Mandracchia v Allstate Ins. Co. (2010 NY Slip Op 50882(U))

Civil Court of the City of New York, Richmond County

08R014639

A P P E A R A N C E S:

Attorneys for Plaintiff:

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, NY 11501

Attorneys for Defendant:

Peter C. Merani, P.C.

298 Fifth Avenue, 3rd Floor

New York, NY 10001

Katherine A. Levine, J.

Plaintiff Anthony Mandracchia, D.C. (“plaintiff”), a medical service provider, brings this action pursuant to Insurance Law § 5106(a) to recover $320.30 for services it provided to its assignor, Dwayne Loftin (“assignor”), for injuries he allegedly sustained in an automobile accident. Defendant Allstate Insurance Co. (“defendant”) moves to dismiss pursuant to CPLR § 3211 or, in the alternative, for summary judgment pursuant to CPLR § 3212 on the grounds that the instant action is barred by the six (6) year Statute of Limitation. Plaintiff opposes the motion.

Pursuant to Insurance Law § 5106, a complete proof of claim is a prerequisite to receiving no-fault benefits. Under the old regulations applicable to insurance policies issued before April 5, 2002, the written proof of claim must be submitted to the insurance company “as soon as reasonably practicable, but in no event later than 180 days after the date services are rendered or 180 days after the date written notice was given to the insurer. 11 NYCRR 65.12. See Rockman v. Clarendon, 2008 NY Slip Op 52093 (U), 21 Misc 3d 1118(A) (Civil Ct., Richmond Co. 2008) citing Montefiore Medical Center v. Mary Immaculate Hospital, 9 AD3d 354 (2d Dept. 2004). Within 30 days of receiving the claim, an insurer shall either pay or deny the claim in whole or in part. See 11 NYCRR 65.15(g)(3). In the event an insurer fails to timely deny a claim or request verification from the provider, the insurer is precluded from asserting that the claim was untimely or incomplete. Presbyterian Hosp. In City of NY v. Maryland Cas. Co., 90 NY2d 274, 282 (1997); Montefiore Medical Center v. NY Cent. Mut. Fire Ins. Co., 9 AD3d 354, 355 (2d Dept. 2004); NY Hosp. Med. Ctr. Of Queens v. Country-Wide Ins. Co., 295 AD2d 583 (2d Dept. 2002).

An action to recover first party benefits owed under an insurance policy is viewed as a breach of contract governed by the six year statute of limitations contained in CPLR 213(2). Alleviation Supplies, Inc. v Enterprise Rent-A-Car, 12 Misc 3d 787, 791 (Civil Ct., Richmond Co. 2006). See, Benson v. Boston Old Colony, 134 AD2d 214, 215 (1st Dept. 1987); Spring World Acupuncture, PC. V. NYC Transit Authority ., 24 Misc 3d 39 (2009). In contract cases, the cause of action accrues ,and the statute of limitations begins to run at the time of the breach.Micha v. Merchants Mutual Ins. Co., 94 AD2d 835, 836 ( 2d Dept. 1983). [*2]

In no fault actions, a defendant insurer’s contractual obligation to pay the first party benefits arises after it receives the claim. As set forth above, pursuant to Insurance Law §5106, an insurer must either pay or deny the claim within 30 days of submission of proof or the bill becomes overdue. The cause of action thus accrues once the claim is overdue. In Line Chiropractic v. MVAIC, 2005 NY Slip Op 50275U, 6 Misc 3d 1032A (Civil Ct, Bronx Co. 2005), and the statute of limitations thus commences either upon the denial of the claim or, if the thirty days after the submission of plaintiff’s proof of claim. Mandarino v. Travelers Prop. Cas. Ins. Co., 37 AD3d 775 (2nd Dept. 2007); Micha v. Merchants Mut. Ins. Co., 94 AD2d 835, 836 (3d Dept. 1983), citing Insurance Law 675(1); Chester Medical Diagnostic v. Kemper Casualty Ins. Co., 2008 NY Slip Op. 52009(U), 21 Misc 3d 1108(A) (Civil Ct., Kings Co. 2008).

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. Cimino v. Dembeck,61 AD3d 802 (2d Dept. 2009). See, Swift v New York Med. Coll., 25 AD3d 686, 687 ( 2d Dept. 2006). “In order to make a prima facie showing, the defendant must establish, inter alia, when the plaintiff’s cause of action accrued” (Swift v New York Med. Coll., 25 AD3d at 687). Furthermore, in deciding a CPLR 3211 motion to dismiss, “a court must take the allegations in the complaint as true and resolve all inferences ] in favor of the plaintiff” Cimino, supra, (Sabadie v Burke, 47 AD3d 913, 914,(2d Dept. 2008).

On a motion for summary judgment, a court may consider evidence contained in documents supplied by a party to the court. See Kwiecinski v. Chung Hwang, 2009 NY Slip Op 06630, 2009 NY App. Div. LEXIS 6503 (3d Dept. 2009); Sonnenfeldt v. Kyriakoudes, 226 AD2d 286 (1 Dept. 1996) citing Central Petroleum Corp. v. Kyriakoudes, 121 AD2d 165 (1st Dept. 1986). A court may utilize these admissions as evidence upon which it can make findings of fact. Potamkin Cadillac Corp. v. BRI Coverage Corp., 38 F3d 627 (2d Cir. 1994); Freemantle v. U.S. Hoffman Machinery Corp., 2 AD2d 634 (3d Dept. 1956)(statements in answers to interrogatories or in proposed findings of fact are admissions against the party that made them); Bertha Building Corp. v. National Theatres Corp., 248 F.2d 833, 836 (1957).

Plaintiff has annexed to its complaint a ledger providing the particulars of the assignor’s bill, including the date of accident and the date of service of August 25, 1998. The complaint avers that “the bill was received timely”; i.e. that plaintiff submitted the bill to Allstate within 180 days. The complaint also avers that more than 30 days have passed since the bill was submitted and that defendant failed to properly deny the bill within 30 days of receipt. Given these admissions, the court follows the rational of Pinnacle Open MRI, PC., v. Republic Western Insurance Co., 18 Misc 3d 626 (Dist. Ct., Nassau Co. 2008), in determining the latest date by which plaintiff could have commenced the lawsuit and be timely. In Pinnacle, the defendant insurer averred that it did not have the NF-3 claim form filed with it by the plaintiff, although it did not deny its receipt. The court therefore used the date of service, added the additional 180 days that plaintiff had to file the claim, and then added the maximum of 30 days in which the insurer had in which to pay or deny the claim to determine the day that plaintiff’s cause of action ripened.

Utilizing this formula, plaintiff would be barred by the six year statute of limitations from [*3]bringing this action. Adding the additional 180 days to the date of service – August 25, 1998- and then adding an additional 30 days in which the insurer had to pay or deny the claim – bring the date that the claim became overdue to March 23, 1999. Since plaintiff admits that the service of the summons and complaint upon defendant was completed on August 6, 2008 ( see proposed judgment and attorney’s affirmation of plaintiff’s counsel dated October 6, 2008 annexed to defendant’s motion as Exhibit “B”) it is clear that the instant action was commenced way beyond the six year statute of limitations. As such, the complaint is dismissed.

The foregoing constitutes the order and decision of the court.

Dated: April 28, 2010_____________________________

KATHERINE A. LEVINE

JUDGE, CIVIL COURT

ASN by_________on________

A P P E A R A N C E S:

Attorneys for Plaintiff:

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, NY 11501

Attorneys for Defendant:

Peter C. Merani, P.C.

298 Fifth Avenue, 3rd Floor

New York, NY 10001