JAMAICA DEDICATED MEDICAL CARE v. USAA CASUALTY INS CO (2019)

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 1, 2016. The order granted defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), and denied plaintiff's “cross” motion, pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the service on December 31, 2015 timely.

ORDERED that the order is affirmed, without costs.

Plaintiff, a provider, commenced this action to recover assigned first-party no-fault benefits by filing a summons and complaint in the Civil Court on July 14, 2015 (see CCA 400). However, plaintiff did not serve these documents on defendant until December 31, 2015, which was beyond the 120-day time period allotted by CPLR 306-b (see CCA 403). By notice of motion returnable on February 25, 2016, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8), and, by notice of motion returnable on December 1, 2016, plaintiff “cross-moved,” pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the December 31, 2015 service timely. By order dated December 1, 2016, the Civil Court granted defendant's motion and denied plaintiff's “cross” motion.

For the reasons stated in Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. ( Misc 3d, 2019 NY Slip Op [appeal No. 2017-2251 K C], decided herewith), the order is affirmed.

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