| J.C. Healing Touch Rehab, P.C. v MVAIC |
| 2024 NY Slip Op 50393(U) |
| Decided on March 1, 2024 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Marshall & Marshall, PLLC (Angelique Evangelista and David Gierasch of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated February 1, 2023. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross-motion for summary judgment.
ORDERED that the order is reversed, with $30 costs, 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) moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired, and plaintiff cross-moved for summary judgment. By order dated February 1, 2023, the Civil Court denied MVAIC's motion for summary judgment dismissing the complaint and granted plaintiff's cross-motion.
MVAIC's motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations (see Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). In opposition, plaintiff failed to raise an issue of fact as to [*2]the action's timeliness (see Precision Radiology Servs., P.C. v MVAIC, 34 Misc 3d 126[A], 2011 NY Slip Op 52274[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). To the extent that the Civil Court sua sponte held that MVAIC was estopped from interposing its defense that the action was barred by the statute of limitations, the record is bereft of facts to support such a determination (see Airco Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68 [1980]).
In light of the foregoing, we reach no other issue.
Accordingly, the order is reversed, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross-motion for summary judgment is denied.
TOUSSAINT, P.J., MUNDY and HOM, JJ., concur.
ENTER: