Greenway Med. Supply Corp. v. Repwest Ins. Co.

77 Misc. 3d 135(A), 2022 NY Slip Op 51269(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 2, 2022
• Docket: 2021-79 K C
• Status: Unpublished

Opinion

Greenway Med. Supply Corp. v Repwest Ins. Co. (2022 NY Slip Op 51269(U)) [*1]

Greenway Med. Supply Corp. v Repwest Ins. Co.

2022 NY Slip Op 51269(U) [77 Misc 3d 135(A)]

Decided on December 2, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 2, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-79 K C

Greenway Medical Supply Corp., as Assignee of Osorio Ernesto, Respondent,

against

Repwest Insurance Company, Appellant.

Husch Blackwell, LLP (Matthew A. Sarles of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered September 4, 2019. The order, insofar as appealed from as limited by the brief, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant's cross motion for summary judgment dismissing the complaint on the ground that there was an issue of fact as to whether the three-year limitation period of CPLR 214 (2) was applicable.

A review of the record reveals that defendant demonstrated, 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. Thus, the record establishes that there is no coverage for no-fault benefits from defendant as defendant had not issued an automobile insurance policy which would cover [*2]the underlying accident (see Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co., 69 Misc 3d 144[A], 2020 NY Slip Op 51379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Parisien v Gallagher Bassett Servs., 66 Misc 3d 128[A], 2019 NY Slip Op 52040[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). We note that, while the six-year statute of limitations for contracts is applicable to no-fault claims against an insurer (see CPLR 213 [2]), to the extent any causes of action accrued against the self-insurer upon plaintiff's submission of bills in 2010, the three-year statute of limitations set forth in CPLR 214 (2) would apply (see Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]; Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51206[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51205[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; S & R Med., P.C. v NYCTA-MABSTOA, 61 Misc 3d 138[A], 2018 NY Slip Op 51582[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 2, 2022