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A tongue twister regarding when a cause of action accrues



Flatlands Acupuncture, P.C. v Fireman’s Fund Ins. Co., 2011 NY Slip Op 21133 (App. Term 2d Dept. 2011)

This case is so fraught with procedural errors from the parties that you have to wonder whether anyone thinks before they write

Anyway, here is the holding:

“There are, therefore, two methods to compute the accrual date in the case at bar: the first is measured, in part, from the last date on which written notice of the accident must be given to the insurer, and the second is measured, in part, from the date the services were rendered. Since the accident occurred on or about October 23, 2000, and the action was commenced on August 29, 2007, it is clear that plaintiff does not benefit by using the first computation method.

Using the second computation method to ultimately arrive at the accrual dates, the calculations begin by determining when, at the latest, a claim form was required to be submitted for each service rendered. We note that the dates of the services for which plaintiff sought reimbursement ranged from October 27, 2000 through April 24, 2001. Plaintiff had 180 days from the date each service was rendered to timely submit a claim seeking reimbursement therefor, and defendant had 30 days from its receipt to either pay or deny such claim. Consequently, accepting the truth of plaintiff’s allegations that it timely submitted the claims and that defendant did not timely deny them, the accrual date, or the date that payment of no-fault benefits became overdue for each service for which reimbursement was sought, was, at the very latest, 210 days after each service was rendered, and plaintiff was required to bring its action within six years thereafter (CPLR 213 [2]).”

1) What is a prima facie case?  It is the submission of a bill +thirty days elapsing from same.  Question – why the heck are you going to allege that the bill was timely submitted? That is dumb.  If that allegation were not present, then the complaint on its face could not be used to determine whether the statute of limitations expired.  This would result in defendants motion being denied in its entirety,

2) How can you present a stamped bill in your moving papers without incorporating a pro forma affidavit stating that the bill was received on the date stamped on the bill?  Unreal.

3) This is more proof that the current method of resolving motions in the Civil Courts, i.e., through “oral argument” without reading the papers is a complete failure.  OCA is aware of this, but has refused to do anything about it.