Precision Radiology Servs., P.C. v MVAIC (2011 NY Slip Op 52274(U))

Precision Radiology Servs., P.C. v MVAIC

2011 NY Slip Op 52274(U) [34 Misc 3d 126(A)]

Decided on December 16, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

Precision Radiology Services, P.C. as Assignee of LUIS FIGUEROA, Respondent,

against

MVAIC, Appellant. -x

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 5, 2007, deemed from a judgment of the same court entered January 25, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 5, 2007 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $878.67.

ORDERED that the judgment is reversed, without costs, the order entered June 5, 2007 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order entered June 5, 2007 which denied its motion for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired, and granted plaintiff's cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action 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]). The time within which an action must be commenced is computed "from the time the cause of action accrued to the time the claim is interposed" (CPLR 203 [a]). In this case, MVAIC established that plaintiff had commenced the action after the expiration of the statute of limitations. In opposition, plaintiff failed either to demonstrate that the action had been timely commenced or to raise an issue of fact as to its timeliness (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 429 [2004]; Turnpike Med. P.C. v MVAIC, 32 Misc 3d 143[A], 2011 NY Slip Op 51717[U] [App Term, 2d, [*2]11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, the order entered June 5, 2007 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.