DJS MEDICAL SUPPLIES INC v. METROPOLITAN AUTO HOME AND LIFE INSURANCE (2021)

Supreme Court, Appellate Term, New York,

DJS MEDICAL SUPPLIES, INC., as Assignee of Inna Borodina, Appellant, v. METROPOLITAN AUTO HOME AND LIFE INSURANCE, Respondent.

2019-959 Q C

Decided: February 19, 2021

PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ.

Law Office of David O'Connor, P.C. (David B. O'Connor of counsel), for appellant. Bruno, Gerbino. Soriano & Aitken, LLP (Nathan Shapiro and Susan Eisner of counsel), for respondent.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant's motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant's motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff's delay in prosecuting the action. Insofar as is relevant to this appeal, the Civil Court granted this branch of defendant's motion and found that the branch of the motion seeking to toll statutory no-fault interest was moot.

For the reasons stated in V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (67 Misc 3d 142[A], 2020 NY Slip Op 50734[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order, insofar as appealed from, is reversed, the branch of defendant's motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant's motion (see Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co., 66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.

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