Shtarkman v MVAIC (2008 NY Slip Op 51447(U))

Shtarkman v MVAIC

2008 NY Slip Op 51447(U) [20 Misc 3d 132(A)]

Decided on July 8, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.

Igor Shtarkman, M.D. a/a/o Adelina Talisveyber, Respondent,

against

MVAIC, Appellant.

Appeal from the order of the Civil Court of the City of New York, Kings County (Ann E. O'Shea, J.), entered November 23, 2004. The order denied defendant's motion for summary judgment.

Order reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment on the ground that the action was barred by the statute of limitations. The complaint alleged that the subject claim form was submitted to defendant on or about June 5, 1997, that the claim has not been paid and that statutory
interest was to be computed as of 30 days after the claim's submission. Accordingly, the payment due date, as implicitly alleged by plaintiff in its complaint, must be deemed to have been in July 1997, that is, 30 days after receipt of the claim (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65.15 [g], now Insurance Department Regulations [11 NYCRR] § 65-3.8; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]). We reject plaintiff's argument that defendant was required, as part of its prima facie showing on its motion, to demonstrate that the payment due date was not tolled by a verification request. We place no such burden on plaintiffs who move for summary judgment (cf. Westchester Med. Ctr. v Progressive Cas. Ins. Co., ___ AD3d ___, 2008 NY Slip Op 04867 [2d Dept 2008]). Because plaintiff did not commence this action until March of 2003, it was barred by the three-year statute of limitations set forth in CPLR 214 (2) (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d & 11th Jud Dists 2008]; Boulevard [*2]Multispec Medical, P.C. v MVAIC, 19 Misc 3d 138[A], 2008 NY Slip Op 50872[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, defendant's motion for summary judgment dismissing the complaint should have been granted (Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [2008], supra).