May 22, 2013

Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co. (2013 NY Slip Op 50900(U))

https://www.beynensonlaw.com/case-law/richmond-pain-mgt-p-c-v-aetna-travelers-ins-co-2013-ny-slip-op50900u/

Court: Appellate Term, Second Department
Decided: May 22, 2013
Citation: 2013 NY Slip Op 50900(U) · 39 Misc 3d 147(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Provider prevailed
Issues: Statute of limitations
Legal questions: No-fault statute of limitations · Service and jurisdiction over the insurer (see the maps)

Cite as

Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co., 39 Misc 3d 147(A), 2013 NY Slip Op 50900(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 insurer failed to establish a limitations bar because service commenced the action within six years and late filing received nunc pro tunc effect. The provider's claim accrued in 2002, and service under CPLR 312-a commenced the Civil Court action in April 2003 under the former commencement system and CPLR 203 (b) (1). Although former CCA 409 required filing within 14 days after service, the provider complied with an order allowing late filing under former CCA 411. The six-year period under CPLR 213 (2) therefore had not expired before commencement. The Appellate Term, Second Department, reversed and denied the insurer's CPLR 3211 (a) (5) dismissal motion; the propriety of allowing filing more than five years late was outside the scope of review.

Reported in New York Official Reports at Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co. (2013 NY Slip Op 50900(U))

[*1]

Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co.

2013 NY Slip Op 50900(U) [39 Misc 3d 147(A)]

Decided on May 22, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2013

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
.

Richmond Pain Management, P.C. as Assignee of JAMES CAMERON, Appellant, —
against
Aetna/Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered February 17, 2011. The order granted defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action is barred by the statute of limitations.

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). “In an action which is commenced by service, a claim asserted in the complaint is interposed against the defendant . . . when the summons is served upon the defendant” (CPLR 203 [b] [1]). The present action was commenced in the Civil Court in 2003 by service of the summons, pursuant to CPLR 312-a (see CCA former 403), before the filing system for commencing actions in the Civil Court took effect. Here, dismissal of the action due to a violation of former section 409 of the New York City Civil Court Act, which required that a copy of the summons with proof of service ^[FN1] be filed with the clerk of the court within 14 days after service of the summons, is not warranted, since, by order entered October 16, 2009, the Civil Court (Katherine A. Levine, J.) conditionally permitted the filing thereof nunc pro tunc ^[FN2] [*2]
(see CCA former section 411; J.R. Dugo, D.C., P.C. v New York Cent. Mut. Ins. Co., 24 Misc 3d 68 [App Term, 2d, 11th & 13th Jud Dists 2009]). It is undisputed that plaintiff filed the summons with proof of service in accordance with Judge Levine’s order and, thus, the filing was given nunc pro tunc effect (see CCA former section 411). Consequently, since the cause of action accrued in 2002, defendant failed to make a prima facie showing that the six-year statute of limitations (see CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]) had expired prior to the April 2003 commencement of the action.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations is denied.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 22, 2013

Footnotes

Footnote 1: In the instant case, proof of service was defendant’s signed acknowledgment of receipt of the mailed service of the summons (see CPLR 312-a [b]).

Footnote 2: The issue of whether the Civil Court providently exercised its discretion in permitting the nunc pro tunc filing after more than five years is not subject to review on this appeal.

Legal questions (2)

Questions 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 an insurer under a policy carries the six-year contract period (CPLR 213 [2]) (rules on the question, but another ground decided the case)

Held the insurer failed to show the six-year limitations period had expired, because the claim accrued in 2002 and the action was commenced in April 2003 by service, with nunc pro tunc filing permitted.

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, 21 (this one included) are in the same category.

Service and jurisdiction over the insurer

Open the full map

Was the insurer validly served with process, and does the court have personal jurisdiction over it?

This decision: Insurer validly served and subject to the court's jurisdiction, or service defect cured/excused (rules on the question, but another ground decided the case)

Held the late filing of the summons with the insurer's signed CPLR 312-a acknowledgment was given nunc pro tunc effect under CCA former 411, so the action was commenced by 2003 service and was timely.

Jurisdiction upheldService defectiveNo jurisdiction over insurerHearing or discovery neededObjection waived/not requiredThis decisionCites it or cited by itCited or followed

Of the 129 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.

Cited in this decision

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

J.R. Dugo, D.C., P.C. v New York Cent. Mut. Ins. Co. (2009 NY Slip Op 29261) FollowedThe provider's request for nunc pro tunc relief warranted accepting its late filing of the summons and proof of service.
Mandarino v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 01693) FollowedA provider's action to recover no-fault benefits under an insurance policy is governed by the six-year contractual limitations period.

Cited by

Chiropractic Life, P.C. v Unitrin Advantage Ins. Co. (2021 NY Slip Op 51221(U))The insurer failed to establish the claim's accrual date and could not obtain dismissal on limitations grounds.

Similar decisions

EBM Med. Health Care, P.C. v Amica Mut. Ins. Co. (2011 NY Slip Op 51720(U))The insurer failed to establish that the provider's no-fault action was barred by the six-year contract statute of limitations.
Roman Chiropractic, P.C. v Lumbermens Mut. Cas. Co. (2011 NY Slip Op 52090(U))A dismissal for want of prosecution does not bar a new action on res judicata grounds unless it specifies dismissal on the merits.
Cautious Care Med., P.C. v Omni Indem. Co. (2020 NY Slip Op 51384(U))A first-party no-fault cause of action accrues 30 days after the insurer receives the claim and carries a six-year limitations period.
Dyckman Med. Diagnostic/Treatment, P.C. v Granite State Ins. Co. (2014 NY Slip Op 51026(U))The insurer failed to prove its limitations defense because its conclusory denial of receipt did not rebut the affidavit of service.
New York Med. Rehab., P.C. v Travelers Ins. Co. (2013 NY Slip Op 23218)The provider's action was time-barred because mailing the summons without a signed acknowledgment did not commence it.