Palisades Safety And Insurance Association v. Martinez

Mr. Richard Martinez and Geico Insurance Company have moved this court, pursuant to CPLR 3211 (a) (5), for an order to dismiss the within action on the ground that the action is barred by the applicable three year statute of limitations for personal injury and subrogation actions (CPLR 214[5]). The defendants contend that the accident underlying the within action unquestionably occurred on August 17, 2001, and that "[t]he present action [against Mr. Martinez] was commenced on September 8, 2004, well over three years past from the date of the accident on [said] August 17, 2001." Mr. Martinez received the summons and complaint in the mail on September 25, 2004. Geico was served on October 12, 2004. The defendants also assert that the subrogation action is fatally flawed inasmuch as "[t]he complaint only alleges that the defendant GEICO provided insurance coverage to the defendant Martinez on the date of the accident[;] and New York State Insurance Law section 3420 (b) states that no action can be brought on the liability portion of a policy against an insurer until a judgment has been entered against the covered party." In this instance, Palisades Insurance Company, not Geico, paid Grigory Belovskiy ($61,500.00) under the uninsured (sic) provisions of his policy. Lastly, the defendants state that the action against Mr. Martinez should additionally be dismissed since he was only served by regular mail, and not as specified for proper service in CPLR 308.