I. Papers The following papers were read on Defendant’s motion to dismiss Plaintiff’s complaint: Papers Numbered Defendant’s Notice of Motion and Affirmation dated July 1, 2020 (“Motion”) and electronically filed with the court on the same date. 1 II. Background In a summons and complaint dated November 1, 2018 and file stamped by the court on April 25, 2019, Plaintiff sued Defendant insurance company to recover $381.48 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Warren from January 2, 2013 to January 15, 2013 and from January 18, 2013 to February 7, 2013, plus attorneys’ fees and statutory interest (see Motion, Aff. of O’Shea, Ex. A). Defendant moved to dismiss the complaint on the ground that Plaintiff commenced its action after the applicable statute of limitations had expired (CPLR 3211[a][5]). Plaintiff did not oppose Defendant’s Motion. This matter was assigned to this Court for determination on November 17, 2021. III. Discussion “A party may move for judgment dismissing one or more causes of action asserted against [the party] on the ground that…the cause of action may not be maintained because of…statute of limitations” (CPLR 3211[a][5]). First-party No-Fault causes of action are governed by the six-year statute of limitations for actions arising out of contract (CPLR 213[2]; Richmond Pain Mgt., P.C. v. Aetna/Travelers Ins. Co., 39 Misc 3d 147[A], 2013 NY Slip Op 50900[U] *1 [App Term 2d Dept 2013]; EBM Med. Health Care, P.C. v. Amica Mut. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51720[U] *1 [App Term 2d Dept 2011]; DJS Med. Supplies, Inc. v. Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] *1 [App Term 2d Dept 2011]). For a motion to dismiss pursuant to CPLR 3211[a][5], Defendant bears the burden to show that “the time within which to commence the cause of action has expired” (Golden Jubilee Realty, LL v. Castro, 196 AD3d 680, 683 [2d Dept 2021], see Siegler v. Lippe, 189 AD3d 903, 904 [2d Dept 2020]; Shirom Acupuncture, P.C. v. New York City Off. of Comptroller, 47 Misc 3d 150[A], 2015 NY Slip Op 50779[U] *1 [App Term 2d Dept 2015]; Richmond Pain Mgt., P.C. v. Aetna/Travelers Ins. Co., 2013 NY Slip Op 50900[U] *1). Here, Defendant argued that a NoFault cause of action accrued thirty (30) days from the submission of the bills or the date of denial. Contrary to Defendant’s contention, in a No-Fault action, the cause of action accrues thirty (30) days after Defendant’s receipt of the bills (EBM Med. Health Care, P.C. v. Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *1; DJS Med. Supplies, Inc. v. Clarendon Natl. Ins. Co., 2011 NY Slip Op 51304[U] *1). In evaluating a motion to dismiss a complaint as time barred, the Court must accept the allegations in the complaint as true and resolve inferences in Plaintiff’s favor (Silver v. Silver, 162 AD3d 937, 939 [2d Dept 2018]; Cataldo v. Herrmann, 154 AD3d 641, 642 [2d Dept 2017]; EBM Med. Health Care, P.C. v. Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *1-2). In our instant case, Plaintiff’s complaint did not allege when or if Defendant received Plaintiff’s bills. In addition, Defendant’s “no-fault litigation claims” handler, Scarfino, attested that Defendant “[had] not received a properly executed No-Fault Application” as of May 28, 2020, the date of Ms. Scarfino’s affidavit (see Motion, Aff. of O’Shea, Ex. C). It is well settled that the injured party or assignee of No-Fault benefits must submit proof of the claim to the insurer within 45 days of the date when health services were rendered (Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 AD3d 498, 505 [2015]; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d 556, 563 [2008]; 11 NYCRR §65 1.1[d]) and that insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d at 501; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). The accrual date of a No-Fault action may also be computed by adding forty-five (45) days from the date when health services were provided to the thirty (30) days when Defendant has to pay or deny the claim provided that the complaint also alleges Plaintiff’s timely submission of the claims and Defendant’s untimely denial of the claims (see Wexford Med., P.C. v. Commerce Ins. Co., 40 Misc 3d 133[A], 2013 NY Slip Op 51193[U] *1 [App Term 1st Dept 2013]; Flatlands Acupuncture, P.C. Fireman’s Fund Ins. Co., 32 Misc 3d 17, 19-20 [App Term 2d Dept 2011]). Here, while the inartfully drafted complaint alleged that “there ha[d] been no payment” of the bill (Motion, O’Shea Aff. Ex. A at 4-5), it was completely silent as to Defendant’s denial of the claim, timely or not. It is noted, however, that Plaintiff also did not allege the date when the claim/bill was submitted to Defendant, other than stating that the bills were “submitted to [D]efendant more than 30 days ago” from the date of Plaintiff’s complaint which was dated as of November 1, 2018 (id.). Therefore, the accrual date of this No-Fault claim cannot be computed using this method. Since Defendant failed to establish the accrual date of Plaintiff’s claim, it cannot be determined if Plaintiff commenced action before expiration of the statute of limitations. Because Defendant did not meet its burden on its Motion to dismiss on the ground of statute of limitations, the Motion must be denied (see Richmond Pain Mgt., P.C. v. Aetna/Travelers Ins. Co., 2013 NY Slip Op 50900[U] *2; EBM Med. Health Care, P.C. v. Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *2); however, Defendant is not left without any other remedy. To the extent that Defendant sought costs against Plaintiff for failing to oppose Defendant’s Motion, this Court finds that such conduct had not been shown “to delay or prolong the resolution of the litigation or to harass or maliciously injure another” (22 NYCRR 1301.1[c][2]) as Defendant contended (Zhuoya Luo v. Wensheng Wang, 176 AD3d 1016, 1018 [2d Dept 2019]). Therefore, the Court also denies Defendant’s request for costs as a sanction for frivolous conduct (22 NYCRR 130-1.1[a]). IV. Order Accordingly, it is ORDERED that Defendant’s motion to dismiss Plaintiff’s complaint on the ground of statute of limitations is denied; and it is further ORDERED that Defendant’s request for costs against Plaintiff is denied. This constitutes the Decision and Order of the court. Dated: December 21, 2021
