Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered September 8, 2006. The order granted defendant's motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant's motion for summary judgment denied.

In this action to recover assigned first-party no-fault benefits, defendant MVAIC moved for summary judgment dismissing the complaint on the ground that the action was barred by the statute of limitations. The court granted defendant's motion and the instant appeal by plaintiff ensued.

It is well settled that an element of a provider's prima facie case in an action commenced to recover assigned first-party no-fault benefits is that payment of the benefits sought be overdue (see e.g. Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Consequently, the statute of limitations in such action does not begin to run until the benefits become overdue (see Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987]; see also Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 221 [1996]). Since the record does not establish all of the facts necessary to determine when the instant cause of action accrued, defendant failed to prove as a matter of law that the action was barred by the statute of limitations (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant's motion for summary judgment should have been denied.

Pesce, P.J., Weston Patterson and Golia, JJ., concur. [*2]
Decision Date: February 26, 2008