December 10, 2021

Midwood Total Rehab Med., P.C. v Republic W. Ins. Co. (2021 NY Slip Op 51206(U))

https://www.beynensonlaw.com/case-law/midwood-total-rehab-med-p-c-v-republic-w-ins-co-2021-ny-slip-op51206u/

Court: Appellate Term, Second Department
Decided: December 10, 2021
Citation: 2021 NY Slip Op 51206(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Statute of limitations
Legal questions: No-fault statute of limitations (see the maps)

Cite as

Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 2021 NY Slip Op 51206(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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 provider's action was untimely under the three-year limitations period for claims involving a self-insured vehicle. The defendant established that it did not insure the vehicle and acted only as a third-party claims handler for its self-insured owner. The provider's affidavit showed mailing of the claim on December 22, 2010, but suit was not commenced until November 22, 2016. Applying CPLR 214 (2) and Contact Chiropractic, P.C. v New York City Tr. Auth., the Appellate Term, Second Department, reversed denial of the defendant's cross motion and granted summary judgment dismissing the complaint. Appeals concerning declaratory-judgment preclusion and reargument were dismissed as academic; no other issue was reached.

Reported in New York Official Reports at Midwood Total Rehab Med., P.C. v Republic W. Ins. Co. (2021 NY Slip Op 51206(U))

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

Midwood Total Rehab Medical, P.C., as Assignee of Rosario, Rafael, Respondent,
against
Republic Western Insurance Company, Appellant.

Bryan Cave, LLP (Mathtew Sarles and Adam S. Bird-Ridnell of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed). Separate

appeals from orders of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 20, 2017 and dated April 10, 2019, respectively, and from an order of the same court (Sandra E. Roper, J.), entered April 22, 2019. The order entered December 20, 2017 denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. The order dated April 10, 2019 denied defendant’s motion which, in effect, had sought leave to reargue defendant’s prior motion seeking summary judgment dismissing the complaint. The order entered April 22, 2019 denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that the action was commenced after the statute of limitations had expired.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order entered April 22, 2019 is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. By order entered December 20, 2017, the Civil Court (Louis L. Nock, J.) denied defendant’s motion for summary judgment. Defendant [*2]then moved for what it denominated as leave to renew its motion seeking summary judgment dismissing the complaint and plaintiff opposed such motion. While the motion purportedly seeking renewal was pending, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired. By order dated April 10, 2019, the Civil Court (Louis L. Nock, J.) denied defendant’s motion, stating that while it was denominated as one seeking renewal, it was actually an untimely motion seeking leave to reargue defendant’s prior motion which had sought summary judgment dismissing the complaint. By order entered April 22, 2019, the Civil Court (Sandra E. Roper, J.) noted that plaintiff had withdrawn its motion seeking summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

A review of the record reveals that defendant has established, 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. In addition, the affidavit by plaintiff’s owner demonstrated that the claim at issue was mailed to defendant on December 22, 2010 and the action was not commenced until November 22, 2016. Consequently, defendant’s cross motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations applicable to self-insurers (see CPLR 214 [2]; Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness. In light of the foregoing, the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, have been rendered academic. We reach no other issue.

Accordingly, the order entered April 22, 2019 is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted, and the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 10, 2021

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No-fault statute of limitations

Open the full map

Which limitations period governs a first-party no-fault claim against an insurer, self-insurer or MVAIC: six or three years?

This decision: Claim against a self-insurer carries the three-year statutory period (CPLR 214 [2])

Held that because the vehicle was self-insured by U-Haul and defendant was only its claims handler, the three-year period of CPLR 214 (2) applied and the action commenced nearly six years after mailing was time-barred.

Six years: insurerSix years: self-insurerThree years: self-insurerThree years: MVAICThis decisionCites it or cited by itCited or followed

Of the 56 decisions on this question in the Second Department courts and the Court of Appeals, 6 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Contact Chiropractic, P.C. v New York City Tr. Auth. (2018 NY Slip Op 03093) FollowedNo-fault claims against a self-insurer are subject to the three-year statute of limitations under CPLR 214 (2).

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.
Greenway Med. Supply Corp. v Repwest Ins. Co. (2022 NY Slip Op 51269(U))The defendant claims handler established that it had issued no automobile policy covering the accident and owed no no-fault coverage.

Similar decisions

ZG Chiropractic Care, P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50079(U))The insurer justified vacating its default through an existing stay and obtained dismissal based on a preclusive declaratory judgment.
Active Chiropractic, P.C. v Allstate Ins. (2018 NY Slip Op 50201(U))An unpleaded res judicata defense may support summary judgment absent surprise or prejudice to the opposing party.
Allay Med. Servs., P.C. v Nationwide Ins. (2021 NY Slip Op 50086(U))The provider's action was barred by res judicata because the prior declaratory judgment covered the same claim and accident.
Freedom Chiropractic, P.C. v 21st Century Ins. Co. (2020 NY Slip Op 50686(U))The provider's default judgment was vacated because its mailed motion gave the insurer less than the required 13 days' notice.
Success Rehab, PT, P.C. v Hereford Ins. Co. (2019 NY Slip Op 52031(U))The insurer's IME no-show defense failed on nine claims because the first IME was scheduled beyond 30 days after receipt.