Aetna Life and Cas. Co. v. Nelson

• Decision Date: 04 June 1985
• Parties: AETNA LIFE AND CASUALTY COMPANY, Respondent, v. Kenneth R. NELSON, Individually and as Guardian Ad Litem of Gloria A. Nelson and as Natural Guardian of Sheryl Nelson, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 376

490 N.Y.S.2d 376

112 A.D.2d 15

AETNA LIFE AND CASUALTY COMPANY, Respondent, v. Kenneth R. NELSON, Individually and as Guardian Ad Litem of

Gloria A. Nelson and as Natural Guardian of Sheryl

Nelson, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

June 4, 1985.

Bonney & Nicit by John Nicit, Waterloo, for appellant.

Mazza, Williamson & Clune by Robert Clune, Ithaca, for respondent.

Before CALLAHAN, J.P., and BOOMER, GREEN, O'DONNELL and PINE, JJ.

MEMORANDUM:

Plaintiff sued defendants to recoup the first party no-fault benefits it had previously paid defendants, their insureds. Plaintiff moved and defendants cross-moved for summary judgment. Both sides agreed that there were no triable issues of fact. The only question presented was whether the action was timely commenced on November 7, 1983. Both plaintiff and defendants agreed at Special Term that the three year period of limitation applied (CPLR 214[2] ), but disagreed as to when plaintiff's cause of action accrued. Plaintiff claimed that it accrued on April 28, 1981 when the Court of Claims action was finally settled; defendants argued that it accrued on September 23, 1980 when the Court of Claims judgment was entered. Special Term granted summary judgment to the plaintiff reasoning that a six year period of limitation applied (CPLR 213[1] ) and held in the alternative that plaintiff's cause of action was timely commenced even if the three year period of limitation applied because plaintiff's cause of action did not accrue until the Court of Claims judgment was settled.

We hold that the appropriate period of limitation is three years. Plaintiff's cause of action is for enforcement of its "lien against any recovery to the extent of benefits paid or payable by it to the covered person (defendants)" (Insurance Law § 5104[b], formerly Insurance Law § 673[2] ). An action to recover "upon a liability ... created or imposed by statute" must be commenced within 3 years (CPLR 214[2] ). The predecessor statu (CPA § 48[2] [prescribing a six year limitation period] ) referred only to a liability "created" by statute while the present law broadens the coverage to include a liability "imposed" by statute. Thus, even if the liability for which plaintiff seeks recovery existed at common law and was not "created" by the Insurance Law as Special Term held, the liability is "imposed" by the Insurance Law and an action upon that liability is subject to the three year period of limitation (see 35 NY Jur, Limitations and Laches § 56, p. 555; Statutes § 422; Safeco Ins. Co. of Amer. v. Jamaica Water Supply Co., 83 A.D.2d 427, 444 N.Y.S.2d 925, affd. 57 N.Y.2d 994, 457 N.Y.S.2d 245, 443 N.E.2d 493; cf. City of Buffalo v. Maggio, 27 A.D.2d 635, 275 N.Y.S.2d 698, affd. 21 N.Y.2d 1017, 291 N.Y.S.2d 1, 238 N.E.2d 494).

In applying the three year statute we agree with Special Term that plaintiff's cause of action did not accrue until the Court of Claims action was finally settled. Plaintiff's cause of action to enforce its lien cannot...