Contact Chiropractic, P.C. v.

• Decision Date: 03 December 2013
• Citation: 2013 N.Y. Slip Op. 23410,979 N.Y.S.2d 766,42 Misc.3d 60
• Parties: CONTACT CHIROPRACTIC, P.C. as Assignee of Girtha Butler, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.
• Court: New York Supreme Court — Appellate Term

42 Misc.3d 60

979 N.Y.S.2d 766

2013 N.Y. Slip Op. 23410

CONTACT CHIROPRACTIC, P.C. as Assignee of Girtha Butler, Respondent,

v.NEW YORK CITY TRANSIT AUTHORITY, Appellant.

Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.

Dec. 3, 2013.

Jones Jones LLC, New York City (Ryan F. Blackmer of counsel), for appellant.

Law Office of Cohen & Jaffe, LLP, Lake Success (Aaron J. Perretta of counsel), for respondent.

PRESENT: PESCE, P.J., WESTON and RIOS, JJ.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 27, 2011. The order, insofar as appealed from, upon renewal, adhered to the court's prior determination denying defendant's motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits, defendant self-insurer appeals from so much of an order of the Civil Court as, upon renewal, adhered to the court's prior determination denying defendant's motion, in effect, for summary judgment dismissing the complaint.

Plaintiff medical provider commenced this action on January 5, 2007 seeking to recover assigned first-party no-fault benefits for claims which were submitted to defendant between March 14 through August 27, 2001. After issue had been joined, defendant moved, in effect, for summary judgment dismissing the complaint on the ground that the action was barred by the statute of limitations. Defendant contended therein that, since it does not maintain an insurance 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 A.D.3d 544, 831 N.Y.S.2d 475 [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 A.D.3d 409, 917 N.Y.S.2d 856 [2011] 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 A.D.3d 561, 946 N.Y.S.2d 469 [1st Dept. 2012] ).

Vehicle and Traffic Law § 370 mandates that any entity engaged in the business of transporting passengers provide proof of insurance or a surety bond to answer for damages in the event of an accident.

Insurance Law § 5103(a)(1) imposes a duty on the owner of a bus to provide first-party no-fault benefits to its passengers:

“In the case of occupants of a bus other than operators, owners, and employees of the owner or operator of the bus, the coverage for first party benefits shall be afforded under the policy or policies, if any, providing first party benefits to the injured person and members of his household for loss arising out of the use or operation of any motor vehicle of such household. In the event there is no such policy, first party benefits shall be provided by the insurer of such bus.”

In the Matter of Manhattan & Bronx Surface Tr. Operating Auth. v. Evans, 95 A.D.2d 470, 467 N.Y.S.2d 387 [1983], the Second Department recognized the obligation of a self insured to provide the same benefits as those required in an insurance policy. In...