Is it three years or 6 years?
Contact Chiropractic, P.C. v New York City Tr. Auth., 2018 NY Slip Op 03093 (2018)
4-3 holding. For self insured entities, the statute of limitations is 3 years.
Judge Stein was blunt in saying: “I concur in the majority’s analysis and conclusion. However, I write separately to point out that, on this appeal, we do not resolve the question of whether insurance companies who issue contractual insurance policies covering no-fault claims are subject to a three- or six-year statute of limitations, as that question is not before us.”
(1) “We previously have recognized the complex “nature of the statutory and regulatory scheme of the No-Fault Law” (id. at 505), characterizing it as a “Rube-Goldberg” like maze (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 ). This matter is another illustration of the intricacy of that law.”
(2) “To the extent a registrant elects to forego insurance, the alternative form of financial security chosen (be it self-insurance under Vehicle and Traffic Law § 316 or the financial security bond referenced in § 312) must satisfy Insurance Law § 5103, which generally requires the payment of no-fault benefits (minimum amounts of which are specified in 11 NYCRR 65-1.1) and which applies its provisions to any contract for insurance that does not meet the demands of that article”
(3) “We conclude that the three-year statute of limitations as set forth in CPLR 214 (2), which governs disputes with respect to penalties created by statute, should control this case.”
(4) “The no-fault benefits in dispute are not provided by a contract with a private insurer. Instead defendant has met its statutory obligation by self-insuring. No-fault is a creature of statute ”
(5)”Our holding in Aetna Life Ins. Co. is directly applicable here. As we stated in that case, “first-party benefits are a form of compensation unknown at common law, resting on predicates independent of the fault or negligence of the injured party” (id. at 175). In the absence of private law requiring defendant to pay first-party benefits (that is, in the absence of a contract for insurance), the only requirement that defendant provide such remuneration to the assignee as a result of the accident appears in relevant [*2]parts of the Vehicle and Traffic Law and the Insurance Law. Consequently, the source of this claim is wholly statutory, meaning that the three-year period of limitations in CPLR 214 (2) should control this case”
(6) “Applying the three-year statute of limitations set forth in CPLR 214 (2) does not alter the substantive protections afforded under the no-fault law to those with a claim against a self-insurer.” (this was the part that some of the judge’s had a terrible time acknowledging)
I would like to read a bit into Judge Stein’s concurrence. It appears that the next time this issue comes up, it may be a 3 year SOL across the board. I think the people that really get hurt the most here are EIP’s with non-assigned claims that wait for their PI cases to resolve before addressing no-fault lien or wage issues.
Statute of Limitations – three versus six?
Contact Chiropractic, P.C., as Assignee of Girtha Butler v N. Y. City Tr. Auth., 2017 NY Slip Op 88572 (2017)
Apparently, an entity that has NO stake in this battle, American Transit Ins. Co., felt the need to file an Amicus on this issue. Should make for some light an highly relevant reading.
Assuming the Court reverses and finds that lawsuits against governmental entities is guided by a three year statute of limitation, ATIC will clearly benefit from a favorable ruling. Logical right? Oh Brooklyn Bridge, for how much do I sell thee?
“Motion by American Transit Insurance Company for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.”
Contact Chiropractic, P.C., as assignee of Butler v New York City Transit Authority, 2016 NY Slip Op 73043(U)(2d Dept. 2016)
SOL on self-insured’s going up to the Court of Appeals.
“ORDERED that the motion is granted, and the following question is certified to the Court of Appeals: Was the decision and order of this Court dated January 20, 2016, which determined that an action to recover first-party no-fault benefits from a party which is self-insured is subject to a six-year statute of limitations, properly made?
Questions of law have arisen, which, in our opinion, ought to be reviewed by the Court of Appeals (see CPLR 5713).”
Admittedly, this is an issue I do not encounter frequently in my practice insofar as I do not represent or bring actions (usually) against self-insured entities. I am curious to see how this shakes out,
Statute of limitations
Contact Chiropractic, P.C. v New York City Tr. Auth., 2016 NY Slip Op 00325 (2d Dept. 2016)
“The Appellate Term correctly determined that an action by an injured claimant, or his or her assignee, to recover first-party no-fault benefits from a defendant who is self-insured, is subject to a six-year statute of limitations, since the claim is essentially contractual, as opposed to statutory, in nature”
Congratulations to my friend Aaron J. Perretta on his victory here. Given the brevity of the opinion, I am at a loss to understand why leave was granted to Appellant to hear this case,
Statute of Limitations defense was SOL
Dyckman Med. Diagnostic/Treatment, P.C. v Granite State Ins. Co., 2014 NY Slip Op 51026(U)(App. Term 2d Dept. 2014)
(1) “A defendant seeking summary judgment dismissing a complaint on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action had expired (see 6D Farm Corp. v Carr, 63 AD3d 903 ;Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 ). ”
(2) “defendant annexed an affidavit by a litigation specialist employed by a company that administers claims for it, which company is located in Albany, New York, who merely stated, based on a review of defendant’s records, that defendant had never received a summons and complaint in the instant action prior to September 26, 2008. ”
(3) “As an affidavit of a process server constitutes prima facie evidence of proper service, defendant’s mere conclusory denial of receipt of that summons and complaint, made by an employee of a company other than defendant and not by someone employed at the New York City office where service was effectuated, was insufficient to rebut plaintiff’s prima facie proof of proper service”
(4) “It should be noted that defendant’s submission of an answer in 2008 and its service of discovery demands acted as a waiver of any right it may have had to dismissal, pursuant to CPLR 3215 (c), of the 2003 complaint, to which complaint defendant allegedly had never previously served an answer”
So much went wrong for Granite State. As some might say, they could not get out of their own way on this one.
Appellate Term declines to follow First Department 3-year self insured statute of limitations precedent
Contact Chiropractic, P.C. v New York City Tr. Auth., 2013 NY Slip Op 23410 (App. Term 2d Dept. 2013)http://nofault.lisquared.com/wp-admin/post-new.php
“Defendant contended therein that, since it does not maintain an insurance [*2]policy, its obligation to provide no-fault benefits is statutorily imposed (Insurance Law § 5103; see Insurance Department Regulations [11 NYCRR] § 65-2.1) and governed by CPLR 214 (2), which imposes a three-year statute of limitations. In opposition to the motion, plaintiff asserted that a six-year statute of limitations, as set forth in CPLR 213 (2), applied, citing Matter of ELRAC Inc. v Suero (38 AD3d 544 [2d Dept 2007]). Defendant replied that the recent First Department holding in M.N. Dental Diagnostics, P.C. v New York City Tr. Auth. (82 AD3d 409 ) required the imposition of a three-year statute of limitations (see also Richard Denise M.D. P.C. v New York City Tr. Auth., 96 AD3d 561 [1st Dept 2012]).”
So it appears that the Appellate Term followed the Second Department precedent as opposed to more recent First Department precedent. This would be proper. Mountainview Coach Lines v Storms, 102 AD2d 663, 664-665 (2d Dept 1984)
Six year statute of limitations period governed by how the complaint is pleaded
Wexford Med., P.C. v Commerce Ins. Co., 2013 NY Slip Op 51193(U)(App. Term 2d Dept. 2013)
“The complaint alleges that “health services” were rendered to the assignor on January 9, 2003, that a bill for such services was “timely received” by defendant insurer, and that defendant failed to properly deny the bill within 30 days or request additional verification. Inasmuch as plaintiff was required to submit the proof of claim no later than 45 days after the services were rendered (see 11 NYCRR 65-1.1[d]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 589-590 ), and the claim accrued 30 days thereafter (see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 ), this action, commenced on September 18, 2009, is barred by the governing six-year statute of limitations”
By the way, if this was an endorsed complaint, would the pleader be non-suited without the movant providing evidence that the bills themselves were “received” and that thirty days elapsed?
Or what happens if a bill is denied prior to the 30-day deadline to adjust a bill? The Courts have held that this is what starts the SOL clock:
New York Med. Rehab., P.C. v Travelers Ins. Co., 2013 NY Slip Op 23218 (App. Term 2d Dept. 2013)
“A defendant asserting a statute of limitations defense must establish that the plaintiff commenced the action after the expiration of the statute of limitations. A no-fault cause of action accrues when payment of no-fault benefits becomes “overdue” (see Insurance Law § 5106 [a]; see also Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319, 320 ; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 ; Acupuncture Works, P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50646[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). For statute of limitations purposes, plaintiff’s claim accrued on January 14, 2003, the date that defendant issued and mailed its denial of claim form”
Statute of doom.
EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720(U)(App. Term 2d Dept. 2011).
How do you lose a statute of limitations case… Well…
In the no-fault context, a cause of action accrues when payment of no-fault benefits becomes “overdue” (see Insurance Law § 5106 [a]; see also Benson v Boston Old Colony Ins. Co., 134 AD2d 214 ; New Era Acupuncture, P.C. v MVAIC, 18 Misc 3d 139[A], 2008 NY Slip Op 50353[U] [App Term, 2d & 11th Jud Dists 2008]). In this case, benefits became overdue 30 days after defendant’s receipt of proof of the claim (see Insurance Law § 5106 [a]; former Insurance Department Regulations [11 NYCRR] § 65.15 [g], now Insurance Department Regulations [11 NYCRR] § 65-3.8; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 ). The complaint alleges that a claim form in the amount of $1,707.97 was submitted to defendant on June 6, 2001. In considering a motion to dismiss a complaint as barred by the statute of limitations, the court must take the factual allegations of the complaint as true, and [*2]must resolve all inferences in favor of the plaintiff (see Island ADC, Inc., 49 AD3d 815). We note that defendant’s dismissal motion was based upon an allegation that defendant had received a bill for $1,467.95 on April 3, 2001, and that this bill, along with a bill for $240.02, are the bills which are the subject of this action. However, defendant failed to demonstrate that these two bills, one of which it claims to have received on April 3, 2001, are the subject of this action, where the complaint alleges that one bill for $1,707.97 was submitted on June 6, 2001.
Defendant should have (1) moved for summary judgment; (2) provided an affidavit explaining when each bill was received; and (3) provided a copy of each bill.
CPLR 3211(a)(5) + bills that do not add up to the amount in dispute = disaster.
A tongue twister regarding when a cause of action accrues
Flatlands Acupuncture, P.C. v Fireman’s Fund Ins. Co., 2011 NY Slip Op 21133 (App. Term 2d Dept. 2011)
This case is so fraught with procedural errors from the parties that you have to wonder whether anyone thinks before they write
Anyway, here is the holding:
“There are, therefore, two methods to compute the accrual date in the case at bar: the first is measured, in part, from the last date on which written notice of the accident must be given to the insurer, and the second is measured, in part, from the date the services were rendered. Since the accident occurred on or about October 23, 2000, and the action was commenced on August 29, 2007, it is clear that plaintiff does not benefit by using the first computation method.
Using the second computation method to ultimately arrive at the accrual dates, the calculations begin by determining when, at the latest, a claim form was required to be submitted for each service rendered. We note that the dates of the services for which plaintiff sought reimbursement ranged from October 27, 2000 through April 24, 2001. Plaintiff had 180 days from the date each service was rendered to timely submit a claim seeking reimbursement therefor, and defendant had 30 days from its receipt to either pay or deny such claim. Consequently, accepting the truth of plaintiff’s allegations that it timely submitted the claims and that defendant did not timely deny them, the accrual date, or the date that payment of no-fault benefits became overdue for each service for which reimbursement was sought, was, at the very latest, 210 days after each service was rendered, and plaintiff was required to bring its action within six years thereafter (CPLR 213 ).”
1) What is a prima facie case? It is the submission of a bill +thirty days elapsing from same. Question – why the heck are you going to allege that the bill was timely submitted? That is dumb. If that allegation were not present, then the complaint on its face could not be used to determine whether the statute of limitations expired. This would result in defendants motion being denied in its entirety,
2) How can you present a stamped bill in your moving papers without incorporating a pro forma affidavit stating that the bill was received on the date stamped on the bill? Unreal.
3) This is more proof that the current method of resolving motions in the Civil Courts, i.e., through “oral argument” without reading the papers is a complete failure. OCA is aware of this, but has refused to do anything about it.
Three year statute of limitations for common carriers in the First Department
M.N. Dental Diagnostics, P.C. v New York City Tr. Auth., 2011 NY Slip Op 01525 (1st Dept. 2011)
It is well settled that “the No-Fault Law does not codify common-law principles; it creates new and independent statutory rights and obligations in order to provide a more efficient means for adjusting financial responsibilities arising out of automobile accidents” (Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 ). Since it is undisputed that there existed no contract between plaintiff’s assignor and the NYCTA, the common carrier’s obligation to provide no-fault benefits arises out of the no-fault statute. Therefore, the three-year statute of limitations as set forth in CPLR 214(2) is applicable here.
Compare – Elrac v. Suero, 38 A.D.3d 544 (2d Dept. 2007) and Spring World Acupuncture, P.C. v. NYC Transit Authority 24 Misc.3d 39 (App. Term 2d Dept. 2009).
For the record, I believe all no-fault actions should be judged by the 3-year SOL. How do you cite Aetna and then limit its holding to self insured carriers? This decision is schizophrenic.
The Court should have just said: “The order of the Appellate Term is hereby reversed, on the law without costs and case is dismissed. The Clerk is directed to enter judgment accordingly. The Statute of limitations as and against the NYTA is three years as set forth in CPLR 214(2). The Respondent’s arguments lack merit. We offer no other opinion.”
This would have made more sense. Now another Pandora’s box has opened. Does this apply to ELRAC and other self insureds? Is the COA now going to weigh in on this issue?