MIDWOOD TOTAL REHAB MEDICAL v. REPUBLIC WESTERN INSURANCE COMPANY (2021)

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order entered April 22, 2019 is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. By order entered December 20, 2017, the Civil Court (Louis L. Nock, J.) denied defendant's motion for summary judgment. Defendant then moved for what it denominated as leave to renew its motion seeking summary judgment dismissing the complaint and plaintiff opposed such motion. While the motion purportedly seeking renewal was pending, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired. By order dated April 10, 2019, the Civil Court (Louis L. Nock, J.) denied defendant's motion, stating that while it was denominated as one seeking renewal, it was actually an untimely motion seeking leave to reargue defendant's prior motion which had sought summary judgment dismissing the complaint. By order entered April 22, 2019, the Civil Court (Sandra E. Roper, J.) noted that plaintiff had withdrawn its motion seeking summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

A review of the record reveals that defendant has established, as a matter of law, that the vehicle in which plaintiff's assignor was a passenger when the accident occurred was owned by U-Haul, Inc., that the vehicle was self-insured by U-Haul, Inc., that defendant did not insure the subject vehicle, and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. In addition, the affidavit by plaintiff's owner demonstrated that the claim at issue was mailed to defendant on December 22, 2010 and the action was not commenced until November 22, 2016. Consequently, defendant's cross motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations applicable to self-insurers (see CPLR 214 [2]; Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]). In opposition, plaintiff failed to raise an issue of fact as to the action's timeliness. In light of the foregoing, the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, have been rendered academic. We reach no other issue.

Accordingly, the order entered April 22, 2019 is reversed, defendant's cross motion for summary judgment dismissing the complaint is granted, and the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed.

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