[*1]
| New Millenium Med. Supply v Clarendon Natl. Ins. Co. |
| 2010 NY Slip Op 51820(U) [29 Misc 3d 130(A)] |
| Decided on October 22, 2010 |
| Appellate Term, First 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST
DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Hunter, Jr., JJ
570112/10.
New Millenium Medical Supply a/a/o
Gibson Stayman, Plaintiff-Respondent,
against
Clarendon National Insurance Company, Defendant-Appellant.
| 10/22/2010 |
| SUPREME COURT, APPELLATE TERM, FIRST
DEPARTMENT | | | | |
| | | | | | |
| | | | | | | | April
2010 Term |
McKeon, P.J., Schoenfeld, Hunter, Jr., JJ.
New Millenium Medical
SupplyNY County Clerk's No. 570112/10
a/a/o Gibson Stayman,
Plaintiff-Respondent,
against Calendar No. 10-106
Clarendon National Insurance
Company,
Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, New York County
(Peter H. Moulton, J.), dated April 23, 2009, which denied its motion for summary judgment
dismissing the complaint.
Per Curiam.
Order (Peter H. Moulton, J.), dated April 23, 2009, reversed, with $10 costs, motion granted and
complaint dismissed. The Clerk is directed to enter judgment accordingly.
Plaintiff's cause of action to recover assigned first-party no-fault benefits pursuant to a policy of
insurance was not interposed within the applicable six-year statute of limitations (see Mandarino
v Travelers Property Cas. Ins. Co., 37 AD3d 775 [2007]), since the cause of action accrued on
the date the claim became overdue — here, 30 days after defendant's receipt of the claim
— not the date of defendant's untimely denial of the claim (see Matter of Travelers Indem.
Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 [2008]; Benson v Boston Old Colony Ins.
Co., 134 AD2d 214 [1987], lv denied 71 NY2d 801 [1988]). Plaintiff's reliance on Matter of
Taggart v State Farm Mut. Auto. Ins. Co. (272 AD2d 222 [2000]) is misplaced, since that case
involved a general denial of claim issued under 11 NYCRR 65.15(g)(2)(ii) (now 65-3.8[b][2])
terminating no-fault benefits on the ground that the claimant was no longer disabled, while the
matter at bar involves the factually and legally distinct situation in which a specific claim for
no-fault benefits has been submitted to an insurer for payment or denial. Therefore, the complaint
should have been dismissed as time-barred (see Insurance Law § 5106[a]; 11 NYCRR
65-3.8[a][1]; Matter of Travelers Indem. Co. of Conn., supra; Benson, supra).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 22, 2010
Defendant appeals from an order of the Civil Court of the City of New York, New York
County (Peter H. Moulton, J.), dated April 23, 2009, which denied its motion for summary
judgment dismissing the complaint.
Per Curiam.
Order (Peter H. Moulton, J.), dated April 23, 2009, reversed, with $10 costs, motion granted
and complaint dismissed. The Clerk is directed to enter judgment accordingly.
Plaintiff's cause of action to recover assigned first-party no-fault benefits pursuant to a policy
of insurance was not interposed within the applicable six-year statute of limitations (see
Mandarino v Travelers Property Cas. Ins. Co., 37 AD3d 775 [2007]), since the cause of
action accrued on the date the claim became overdue — here, 30 days after defendant's
receipt of the claim — not the date of defendant's untimely denial of the claim (see
Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 [2008];
Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987], lv denied 71 NY2d
801 [1988]). Plaintiff's reliance on Matter of Taggart v State Farm Mut. Auto. Ins. Co.
(272 AD2d 222 [2000]) is misplaced, since that case involved a general denial of claim issued
under 11 NYCRR 65.15(g)(2)(ii) (now 65-3.8[b][2]) terminating no-fault benefits on the ground
that the claimant was no longer disabled, while the matter at bar involves the factually and legally
distinct situation in which a specific claim for no-fault benefits has been submitted to an insurer
for payment or denial. Therefore, the complaint should have been dismissed as time-barred
(see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Matter of Travelers
Indem. Co. of Conn., supra; Benson, supra).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 22, 2010