Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co., 2019 NY Slip Op 52028(U)(App. Term 2d Dept. 2019)
I think the standard of law would be the lesser of thirty-days after receipt or the date a denial is issued.
” Defendant demonstrated that plaintiff’s cause of action accrued 30 days after defendant received plaintiff’s claim and plaintiff did not rebut that showing (see DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff’s cause of action was not timely commenced (see CPLR 213 [2]; DJS Med. Supplies, Inc., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U]). “
I also liked this line: ” Plaintiff’s contention that defendant should be collaterally estopped from asserting a [*2]statute of limitations defense lacks merit since, among other things, the Civil Court order upon which plaintiff relies denied a motion by defendant and was not a conclusive final determination”
Too many attorneys play “fast and loose” with concepts of law to trick judges and others. This is a prime example. Everyone knows or should know that CE only applies to a final determination. While we are at it, law of the case does not apply to pre-answer motions or applications for an injunction.
