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Civil Court, City of New York.

Noel MUNIER, Plaintiff, v. SALAMIS AUTO CENTER, Salamis Auto Body, Koeppelnissan Incorporated, GEICO Insurance Agency, Inc., Nissan Motor Corporation, Nissan North America, Ryan G. Stursberg and Glenn C. Stursberg, “John Doe No.1 through John Doe #12,” the last twelve names being fictitious and unknown to Plaintiff, the person or corporations, if any, having or claiming an interest upon the business of Plaintiff as described in the Complaint, Defendants.


Decided: February 18, 2020

Attorney for Stursberg Defendants: James G. Bilello & Associates, John DiFalco, Esq., 100 Duffy Avenue, Suite 500, Hicksville, NY 11801, (516) 861-1748 Attorney for GEICO: Law Office of Goldstein & Flecker, Katherine A. Hazelton, Esq., 2 Huntington Quadrangle, Suite 2N01, Melville, NY 11747, (516) 714-7701 Attorney for Plaintiff: Douglas M. Reda, Esq., 180 Froehlich Farm Blvd., Woodbury, NY 11797, (516) 921-1873 A copy of the Decision/Order was also mailed to the following two parties: Attorney for co-defendant Koeppel Nissan Incorporated: Law Offices of Ellen M. Russell, 180 Maiden Lane, 15th Floor, New York, NY 10038, (212) 341-6700, Salamis Services Center, Inc., Salamis Auto Center, 21-15 38th Avenue, Astoria, NY 11101

The court's Decision and Order is based upon consideration of the following papers:

CPLR 2219(a) Recitation




Plaintiff brought this action for property damage as a result of a motor vehicle accident which occurred on October 1, 2008. Defendant Ryan Stursberg operated the vehicle involved in the collision which was owned by Defendant Glenn Stursberg (Stursberg Defendants). Plaintiff's claim against the Stursberg Defendants sounds in negligence and the complaint demands payment for the alleged damage to his vehicle resulting from the collision. Plaintiff's cause of action against GEICO is for breach of contract wherein he alleges that GEICO failed to assess the full extent the damage to his vehicle and that the payment GEICO tendered did not satisfy its obligation under the policy. The claims against the remaining defendants will not be addressed as they have not moved for relief.

The Stursberg Defendants now move for summary judgment on grounds that the action is barred by the statute of limitations and the doctrine of accord and satisfaction. Defendant GEICO also moves for summary judgment on grounds that the action is barred by accord and satisfaction.

As a dispositive issue, Plaintiff argues that the summary judgment motions are late and that the court is without discretion to entertain them. He claims that the note of issue was filed on September 16, 2014 and that no motion for summary judgment was brought during the 15 months the case was pending in Supreme Court. He further argues that Defendants did not make a summary judgment motion while the case was on the trial calendar in Civil Court before it was marked “off calendar.”

Pursuant to CPLR 3212(a), courts have “considerable discretion to fix a deadline for filing summary judgment motions,” so long as the deadline is not “earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown” (Brill v. City of New York, 2 NY3d 648, 651 [2004]; see CPLR 3212[a]; Gonzalez v. Pearl, 113 N.Y.S.3d 584 [2d Dept. 2020]). Similarly, in Civil Court, unless the court sets another date, a motion for summary judgment must be made no later than 120 days after the filing of the notice of trial, which is the Civil Court equivalent of a note of issue, except with leave of court on good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d at 651; Boereau v. Scott, 140 AD3d 687 [2d Dept. 2016]; Exceptional Med. Care, P.C. v. Fiduciary Ins. Co., 43 Misc 3d 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ); Urmas Medical, P.C. v. 21st Century Centennial Ins. Co., 61 Misc 3d 135[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ). “A motion on notice is made when a notice of the motion ․ is served” (CPLR 2211; BQE Acupuncture, P.C. v. State Farm Mut. Auto. Ins. Co., 65 Misc 3d 152[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] ). Furthermore, “(u)ntimely made summary judgment motions must be denied outright, irrespective of their merits, unless good cause is shown for the delay” (Castro v. Homsun Corp., 34 AD3d 616, 617 [2d Dept. 2006] [internal citations omitted] ).

The procedural history of this case dates back to January 13, 2012 when Plaintiff commenced the action with the filing of a summons and complaint in Supreme Court, Kings County. The Stursberg Defendants served an answer on or about August 27, 2012 and GEICO served an answer on or about August 28, 2012. Plaintiff's deposition was taken on April 3, 2014. No other discovery is mentioned by the parties. A note of issue was filed in Supreme Court on September 16, 2014. On December 22, 2015, a Post Note-325d Order was signed, transferring the case to Civil Court. No motions for summary judgment or motions to strike the note of issue were filed in the 15 months subsequent to its filing in Supreme Court and before the case was transferred to Civil Court.

Once the case was in Civil Court, it appeared on the trial calendar on May 5, 2016, November 15, 2016, and April 3, 2017. On each date an adjournment was sought. On June 6, 2017, the case was once again conferenced in the trial part and was “Marked Off Calendar” as one or more party, once again, answered not ready for trial. A Stipulation to Restore, dated May 30, 2019, was signed by the parties and, a new notice of trial (the Civil Court equivalent of the note of issue) was filed in Civil Court on or about June 12, 2019. The Stursberg Defendants served their motion for summary judgment on August 16, 2019 and GEICO served its motion for summary judgment on September 27, 2019.

Relevant to this motion is the Second Department holding that the vacatur of the note of issue returns the case to its pre-note of issue status (see Montalvo v. Mumpus Restorations, Inc., 110 AD3d 1045, 1046 (2d Dept. 2013) and that defendants can again seek summary judgment (see Farrington v. Heidkamp, 26 AD3d 459, 460 (2d Dept. 2006). Montalvo v. Episcopal Health Services, Inc., 172 AD3d 1357 [2d Dept. 2019]). Here, the note of issue filed on September 16, 2014 was vacated and nullified when the case was removed from the trial calendar on June 6, 2017 (see Farrington v. Heidkamp, supra; Mack v. Harley, 165 AD3d 641 [2d Dept. 2018]). The operative note of issue/notice of trial was filed on or about June 12, 2019 (see Williams v. Peralta, 37 AD3d 712, 713 [2d Dept. 2007]; Mack v. Harley, supra). As the instant motions were served within 120 days of the June 12, 2019 filing, the court finds them to be timely made.

Plaintiff also argues that the doctrine of laches should preclude these summary judgment motions entirely. Laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party (see Matter of Barabash, 31 NY2d 76 [1972]; Dante v. 310 Assoc., 121 AD2d 332 [1st Dept. 1986]). In this case, as noted above, it has been determined that these motions were timely made. Furthermore, a motion based on a statute of limitations defense may be asserted after joinder of issue in a motion for summary judgment pursuant to CPLR 3212 (see Rich v. Lefkovits, 56 NY2d 276, 282 [1982]; Meredith v. Siben & Siben, LLP, 130 AD3d 791 [2d Dept. 2015]) A defendant may “choose to raise that defense in its answer, and either move on that ground later in a motion for summary judgment, or wait until trial to have it determined” (Wan Li Situ v. MTA Bus Co., 130 AD3d 807, 808 [2d Dept. 2015] [internal citations omitted] ). There is also no indication that delays in this litigation or alleged prejudice due to delays can be solely attributed to the Defendants. Therefore, Plaintiff's arguments as to the untimeliness of the motions are unavailing and the court will now consider the merits of the Defendants' arguments.

The Stursberg Defendants seek summary judgment in their favor claiming that the action is barred by the statute of limitations. They argue that the negligence cause of action asserted against them began to run on October 1, 2008, the date of the accident. They claim that this case, commenced on or about January 13, 2012, is beyond the applicable three-year statute of limitations. Plaintiff counters that the claims for damages arose months after the accident occurred when payment for the full extent of the property damage was not issued. Plaintiff further argues that the actions of the Stursberg Defendants are “ongoing and continuous” as they continue to fail to satisfy Plaintiff's claims for property damage.

It is well established that “(t)he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. The failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). “ ‘[W]hile the ultimate burden of proof at trial will fall upon the plaintiff[s], a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form’ ” (Can Man Carting, LLC v. Spiezio, 165 AD3d 1029 [2d Dept. 2018] [internal citations omitted] ).

The accident on which the entire case is based occurred on October 1, 2008. Plaintiff's claims against the Stursberg Defendants are based on negligence as evidenced by Plaintiff's own complaint. Plaintiff alleges that “Ryan Stursberg was reckless, careless and negligent in the operation, management and control of his motor vehicle ” (Def. 1 Exh. A). As to Glenn Stursberg, Plaintiff claims that he was “reckless, careless and negligent in the ownership and maintenance of his motor vehicle” (id.). It is claimed that as a result of the negligence of the Stursberg Defendants, the vehicle owned by Plaintiff “suffered very extensive damage” (id.). These allegations in the complaint clearly and unequivocally state a cause of action sounding in negligence.

In negligence cases, the statute of limitations generally begins to run when a cause of action accrues (see Aetna Life & Cas. Co. v. Nelson, 67 NY2d 169, 175 [1986]). “The Statute of Limitations does not run until there is a legal right to relief. Stated another way, accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint” (Kronos, Inc. v. AVX Corp., 81 NY2d 90, 94 [1993]; Roldan v. Allstate Ins. Co., 149 AD2d 20, 26 [2d Dept. 1989]; Jacobus v. Colgate, 217 NY 235, 245 [1916]). Property damage claims are governed by the three-year statute of limitations as set forth in CPLR 214(4), and such claims “accrue [ ] upon the date of injury” (Brooklyn Union Gas Co. v. Hunter Turbo Corp., 241 AD2d 505, 506 [2d Dept. 1997]; Manhattanville College v. James John Romeo Consulting Engineer, P.C., 5 AD3d 637 [2d Dept 2004]).

As alleged in Plaintiff's complaint, the purported tortious conduct was the negligent operation and maintenance of the Stursberg Defendants' vehicle which resulted in the accident on October 1, 2008. It was on this date that the right to relief for the property damage arose. Here, Plaintiff commenced the action on or about January 13, 2012, three years and three months after the accrual of the cause of action.

Plaintiff's argument that the accrual date should commence on the date the full extent of the damage was miscalculated is misguided. Likewise, his claim that this wrong continues to the present does not change the accrual date of the cause of action. Even if Plaintiff's complaint alleged a “continuous wrong,” the doctrine should only be “predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct” (Henry v. Bank of America, 147 AD3d 599, 601 [1st Dept 2017]; New York Yacht Club v. Lehodey, 2017 WL 4180167 [Sup. Ct, New York County 2017]). Based on the foregoing, Plaintiff's cause of action against the Stursberg Defendants is barred by the statute of limitations and dismissed.

GEICO moves for summary judgment based on the principle of accord and satisfaction.1 GEICO asserts that in November of 2008, Plaintiff endorsed and deposited two checks it issued totaling $17,166.79. A check dated October 16, 2008 was tendered in the amount of $16,336.57 (Def. 1, Exh. M). The check noted that it was “in payment of property damage coverage Auto property damage 100%.” GEICO issued Plaintiff a second check dated November 10, 2008 in the amount of $830.22 (id.). The notation on this check was “In payment of: property damage coverage Caus Pay Sup1” (id.). Both checks were endorsed for deposit only and deposited by Plaintiff on or about November 26, 2008. GEICO claims that Plaintiff accepted these checks in full satisfaction of the damage to his car. In opposition, Plaintiff argues that the cause of action against GEICO is that it failed to properly assess the full extent of the property damage and that the real dispute arose in January of 2009 when the engine failed on the highway just days after the vehicle was repaired. Plaintiff asserts that it was only then that the controversy regarding the full extent of the damage arose.

“As a general rule, acceptance of a check in full settlement of a disputed unliquidated claim operates as an accord and satisfaction discharging the claim” (Merrill Lynch Realty/Carll Burr, Inc. v. Skinner, 63 NY2d 590, 596 [1984]; Huimin Sun v. Cai, 146 AD3d 760 [2d Dept. 2017]). The essential elements of accord and satisfaction are a dispute as to the amount due and a knowing acceptance by the creditor of a lesser amount (Schuttinger v. Woodruff, 259 NY 212, 216 [1932]; Patel v. Orma, 190 AD2d 782 [2d Dept. 1993]; Pothos v. Arverne Houses, 269 AD2d 377, 378 [2d Dept. 2000]). A genuine dispute requires that the debtor give notice of the dispute prior to tendering a partial payment in full satisfaction (Trans World Grocers Inc. v. Sultana Crackers Inc., 257 AD2d 616 [2d Dept 1999] [internal citations omitted] ).

Based on its submissions, GEICO failed to establish that there was a dispute at the time it tendered the checks to Plaintiff in November of 2008. Prior to issuing the checks, GEICO assessed the damage to the vehicle and processed payment for an amount it determined was the cost of repair. Plaintiff, in reliance on GEICO's evaluation, was a mere recipient of the stated amount. The controversy arose weeks later when Plaintiff claimed mechanical issues were overlooked in GEICO's damage assessment and not covered by the checks.

Further, to assert the affirmative defense of accord and satisfaction, GEICO must not only establish that there was an existing dispute, it must also show the existence of a new contract “discharging all or part of their obligations under the original contract” (see Profex, Inc. v. Town of Fishkill, 65 AD3d 678 [2d Dept. 2009] [internal citations omitted]; Nwulu—Njoku v. Azuaru, 46 Misc 3d 135[A] [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2014] ). GEICO did not elicit a new contract discharging all or part of its obligations or provide new consideration in connection with the payments. There is also no indication that GEICO had Plaintiff sign a general release for future claims at the time it tendered the checks.

Contrary to GEICO's assertion, in the absence of a dispute, its notations on the checks do not amount to new consideration discharging all of its obligations. “It is well settled that ‘acceptance of part payment of a liquidated claim is no defense to an action for the balance, even where part payment is in the form of a check reciting that it is in full settlement, in the absence of a signed agreement or some consideration which is new or collateral to the partial payment’ ” (Nwulu—Njoku v. Azuaru, 46 Misc 3d 135[A] [internal citation omitted]; see Edwards v. Nemet Motors, LLC, 60 Misc 3d 28 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists 2018] ).

The checks issued by GEICO are for a liquidated claim—the sum certain for repairs for damages known in November of 2008. The tendered checks could not have been contemplated to cover Plaintiff's claim for property damage which only became apparent in January of 2009. Inasmuch as Plaintiff was owed, and received, the liquidated sum of $17,166.79 for specific repairs to the vehicle, his acceptance of this sum cannot preclude new claims above and beyond the subject of the original agreement.

As GEICO failed to establish that the checks tendered to Plaintiff were for a disputed unliquidated sum, their acceptance by Plaintiff cannot constitute an accord and satisfaction (see Merrill Lynch Realty/Carll Burr, Inc. v. Skinner, 63 NY2d 590 [1984]; Patel v. Orma, 190 AD2d 782 [2d Dept. 1993]; Old Oak Realty, Inc. v. Polimeni, 232 AD2d 536 [2d Dept. 1996]). Based on the foregoing, GEICO, as a matter of law, failed to establish entitlement to judgment on the basis of an accord and satisfaction (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851). Accordingly, GEICO's motion is denied and its affirmative defense is dismissed. The Stursberg Defendants' motion is granted and Plaintiff's claims against them are dismissed.

This constitutes the decision and order of the court.


1.   The Stursberg Defendants also seek summary judgment based on the defense of accord and satisfaction. However, given the court's decision to dismiss the action against the Stursberg Defendants as untimely, their request for relief on this ground is moot.

Consuelo Mallafre Melendez, J.

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