Natural Therapy Acupuncture, P.C. v. MVAIC

Natural Therapy Acupuncture, P.C., as Assignee of Bishop, Junior, Appellant, against MVAIC, Respondent. The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Barbara Carabell of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered December 15, 2016. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved for summary judgment dismissing the complaint on the ground, among others, that the action had been commenced after the statute of limitations had expired. The Civil Court denied plaintiff's motion and granted defendant's cross motion. MVAIC's cross-moving papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations (see Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]; Delta Diagnostic Radiology, P.C. v MVAIC, 44 Misc 3d 138[A], 2014 NY Slip Op 51261[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). In opposition, plaintiff failed to raise an issue of fact as to the action's timeliness (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Precision Radiology Servs., P.C. v MVAIC, 34 Misc 3d 126[A], 2011 NY Slip Op 52274[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Accordingly, the order is affirmed. PESCE, P.J., WESTON and ALIOTTA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 12, 2019