Contact Chiropractic, P.C., as Assignee of Girtha Butler, Respondent,v.New York City Transit Authority, Appellant.BriefN.Y.March 21, 2018APL-2016-00111 Dated: July 13, 2017 To be Argued by: TRICIA SMITH TIME REQUESTED: 30 MINUTES Olnurt nf Apprals STATE OF NEW YORK CONTACT CHIROPRACTIC, P.C. as assignee of GIRTHABUTLER, Plaintiff-Respondent, - against- NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant, BRIEF FOR PLAINTIFF-RESPONDENT COHEN & JAFFE, LLP Attorneys for Plaintiff-Respondent 2001 Marcus Avenue, Suite W295 Lake Success, New York 11042 (516) 358-6900 (516) 775-7399 Facsimile tcs@cohenjaffe.coni Queens County Clerk's Index No. 03291/07 Appellate Term- Second Department Docket No. 2011-02967 QC Appellate Division - Second Department Docket No. 2014-05446 Press of Fremont Payne, Inc. · 55 Broad Street, Third Floor, New York, NY 10004 · (212) 966-6570 Court of Appeals of the State of New York ---------------------------------------------------------------------)( CONTACT CHIROPRACTIC, P.C., As Assignee of GIRTHA BUTLER, Ct. of Appeals#: APL-2016-00111 App. Div. #: 2014-05446 Plaintiff-Respondent, App. Term#: 2011-02967 QC Lower Court Index #: 3291/07 - against- CORPORATE DISCLOSURE STATEMENT OF CONTACT . CHIROPRACTIC, P.C. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant ---------------------------------------------------------------------)( Pursuant to Section 500.1 (f) of the Court of Appeals Rules and Practice, the undersigned counsel for Plaintiff-Respondent, Contact Chiropractic, P.C. certifies that no parent, subsidiary or affiliate exists. Executed and affirmed to be true under to the . . penalties of perjury at Lake Success, New York, this 13th. day of July 2017. Dated: Lake Success, New York· July 13, 2017 Respectfully Submitted, TRICIA C. SMITH, ESQ. LAW OFFICE OF COHEN & JAFFE, LLP Attorneys for Plaintiff-Respondent CONTACT CHIROPRACTIC, P.C. 2001 Marcus Avenue - Suite W 295 Lake Success, New York (516) 358-6900 1 TABLE OF CONTENTS STATEMENT PURSUANT TO 22 NYCRR 500.l(F) ...................... i TABLE OF CONTENTS ............................................. ii TABLE OF AUTHORITIES ...................................... iv QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS ............................................ 1 ARGUMENT ..................................................... 3 I. Overview ................................................... 3 II. Applicable Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Vehicle and Traffic Law§ 370 ............................... 4 B. Vehicle and Traffic Law§ 321 and Insurance Law§ 5103.. . . . . . . . 6 III. This Court Attaches "No Legal Significance" to the Manner in Which a Vehicle Owner Insures its Vehicle, by Self-Insurance or by Policy of Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 IV. Statutorily Mandated Coverage will be Impliedly Included in an Insurance Policy or Certificate of Self-Insurance if Omitted. . . . . . . . . 11 V. It is Well-Settled That Claims Brought Pursuant to Statutorily Mandated Provisions Within a Policy of Insurance are Contractual in Nature and Governed by the Six-Year Statute of Limitations ...... 16 VI. Actions Seeking Statutorily Mandated Insurance Under a Certificate of Self- Insurance are Contractual in Nature and Governed by the Six-Year Statute of Limitations ............................... 20 VIL Liability to Provide Insurance Coverage is Derived From the Instrumentality of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 VIII. When an Action is Based Upon Both a "Contractual Obligation or Liability" And Upon a "Liability, Penalty or Forfeiture Created or Imposed by Statute," the Longer, Six-Year Statute of Limitations, as Provided in CPLR 213 (2), is Applied to the Exclusion of the Three-Year Statute of Limitations Provided in CPLR 214 (2) ........ 24 IX. Legislative History and Intent Behind Automobile Insurance and Self-Insurance Have Been Influential Factors Behind This Court's Decisions ................................................. 26 X. A Comparison of the Substantive Obligations Under the Insurance Law Between Insurers and Self-Insurers, as Well as Legislative Intent Behind the Authorization of Self-Insurance, is Relevant to Determining the Nature of a Self-Insurer's Liability ............................. 32 XL An Action to Recover Statutorily- Mandatory Insurance Benefits is Predicated on the Contractual Obligation to Assume the Risk of Loss Associated With the Mandated Coverage in Exchange for a Benefit to The Insurer and Self-Insurer .................................. 35 XII. Action Arising From an Implied Contract is Governed by CPLR § 213 (2) ............................................ 36 XIII. This Court's Decisions in MVAIC v. Aetna and Aetna v. Nelson are Distinguishable From the Instant Matter. ............... ; ....... 43 XIV. Appellant's Reliance Upon First Department Case Law Is Misguided. 47 XV. Appellant's Attempt to Liken Itself to MV AIC is Misplaced ........ 50 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR 500.13(c) .. 57 TABLE OF AUTHORITIES CASES: Acupuncture Works, P.C. v. MVAIC, 27 Misc. 13 l(A) (App. Term, 2nd Dept. 2010) ........................................................................................................................ 50 Aetna Life and Cas. Co. v. Nelson, 67 N.Y.2d 169 (1986) .................. .43, 45-49, 54 Ahem v S. Buffalo R. Co., 303 NY 545, 560 [1952) .............................................. 37 Allstate Ins. Co. v. Shaw, 418 N.E.2d 388 (N.Y. 1980) .............................................................................. 6, 10, 11, 14, 15, 27, 29, 33, 50,55 Benson v Boston Old Colony Ins. Co., 521NYS2d14 [1987] ......................... 19, 37 Boulevard Multispec Med. P.C., v. MVAIC, 19 Misc. 3d 138(A) (App. Term, 2nd Dept. 2008) .................................................................................. 51 Chester Med. Diagnostic, P.C. v. Kemper Cas. Ins. Co., 873 N.Y.S.2d 232 (N.Y. Civ. Ct. 2008) ............................................................................................... 37 Colon v Aetna Cas. & Sur. Co., 48 NY2d 570, 575 [1980] .................................... 27 Contact Chiropractic, P.C. v. New York City Transit Authority, 42 Misc. 3d 60 (App. Term, 2nd Dept, 11th & 13th Jud. Dists 2014) ............................................... 2 De Luca v Motor Veh. Acc. Indem. Corp., 17 NY2d 76 [1966] .... 11, 16, 17, 23, 24 Dermatossian v NY City Tr. Auth., 67 NY2d 219 [1986] ........................................ 8 Elrac, Inc. v Ward, 96 NY2d 58 [2001] ........................................................ 10,14,15 Flores v Lower E. Side Serv. Ctr., 4 NY3d 363 [2005] .......................................... 38 General Acc. Ins. Group v Cirucci, 46 NY2d 862 [1979] ...................................... 26 Gurnee v Aetna Life & Cas. Co., 55 NY2d 184 (1982) ............ 17, 18, 20, 30, 37, 46 IV Hanover Ins. Co. v Fleisher, 96 AD2d 881 [1983] ................................................. 18 Hartnett v. New York City Transit Auth., 86 N.Y.2d 438 (1995) .......................... 53 Keith v Liberty Mut. Fire Ins. Co., 118 AD2d 151 [2d Dept 1986] ......................... 8 Laba v Petrullo, 2003 NY Slip Op 50797[U] [App Term 2003] ...................... 23, 24 Mandarino v. Traveler's Prop. Cas. Inc. Co., 37 A.D.3d 775 (App. Div., 2nd Dept. 2007) ............................................ .3, 24-26, 37, 45, 46, 49, 54 Manhattan & Bronx Surface Tr. Operating Auth. v Coccia, 118 Misc 2d 3 78 [Sup Ct, Kings County 1983] ................................................................................. 31 Manhattan & Bronx Surface Tran. Oper. Auth. v. Evans, · 95 A.D.2d 470 (App. Div., 2nd Dept. 1983) ................................ 3, 6, 14, 22, 31, 50 Matter of Country-Wide Ins. Co. [Manning], 96 AD2d 471 [1983], affd 62 NY2d 748 [1984). ............................................... ~ ................................. 11, 31 Matter ofElrac, Inc. v Exum, 18 NY3d 325 [2011] ....................... 12, 32- 35, 50, 52 Matter of Elrac, Inc. v. Suero, 38 A.D.3d 544 (App. Div. 2nd Dep't. 2007) ............................ 2, 12, 14, 20, 21, 50 Matter of New York Cent. Mut. Fire Ins. Co. v Czumaj, 9 AD3d 833 [2004] ....... 19 Matter of NY City Tr. Auth. v Powell, 126 AD3d 705 [2nd Dept 2015] ............... 21 Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319[1st Dept 2008] .................................................... ; ....................... 25, 37 Micha v Merchants Mut. Ins. Co., 94 AD2d 835 [1983] ........................................ 19 Miller v. Schloss, 218 N.Y. 400 (1916) .................................................................. 38 M.N. Dental Diagnostics, P.C. v. NY City Tr. Auth., 82 AD3d 409 (App. Div., 1st Dept. 2011) ................................................................... 2, 40, 47- 49 v MVAIC v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214 [1996] .................. .43, 45- 47, 50 MVAIC v Natl. Grange Mut. Ins. Co., 19 NY2d 115, 118-119 [1967] ........................................................................................................... 17, 23, 24 Nahmias v Merchants Mut. Ins. Co., 91 AD2d 680 [1982] .................................... 19 NY City Health & Hosps. Corp. v Degorter, 133 Misc 2d 93, 97 [Sup Ct, NY County 1986] ...................................................................................... 22 NY City Tr. Auth. v. Hill, 968 N.Y.S.2d 134 (App. Div. 2nd Dept. 2013) ........... 21 NY City Tr. Auth. v Thom, 52 NY2d 1032 [1981] ...................................... 5, 29, 30 Ortiz v NY City Tr. Auth., 30 Misc 3d 1208[A] [Sup Ct, NY County 2010] ...................................................................................... 39 Presbyterian Hosp. in City ofN.Y. v Maryland Cas. Co., 90 NY2d 274 [1997] ..... 8 Reg. Econ. Comm. Act. Prog., Inc. v Enlarged City Sch. Dist. of Middletown, 18 NY3d 474, 479 [2012) ........................................................................................ 37 Richard Denise, M.D., P.C. v. NY City Tr. Auth., 96 A.D.3d 561 (App. Div., 1st Dept. 2012) ..................................................................................... 47 Rosado v Eveready Ins. Co., 34 NY2d 43 [1974] ................................................... 27 Ryder Truck Lines, Inc. v Maiorano, 44 NY2d 364 [1978]. ................... 9, 10, 13, 15 Sharp v Kosmalski, 40 NY2d 119, 122 [ 197 6] ....................................................... 3 8 Shtarkman v. MV AIC, 20 Misc.3d 132 (A) (App. Term, 2nd Dept. 2008) ............ 50 Shutter v Philips Display Components Co., 90 NY2d 703 [1997] ......................... 35 Sinclair v Purdy, 235 NY 245 [1923) ...................................................................... 42 Spring World Acupuncture, P.C. v. NY City Tr. Auth., 24 Misc 3d 39 (App. Term, 2nd Dept., 2009) ............................................. 13-15, 50 Vl Stracar Med. Svcs., P.C. v. MVAIC, 10 Misc.3d 1056(A) (Civ. Ct., Kings, 2005) ............................................................................................ 50 Universal Acupuncture Pain Services, P.C. v. MVAIC, 13 Misc 3d 1244(A) (Dist. Ct., Nassau 2006) ........................................................................................... 51 Vigilant Ins. Co. of Arn. v Hous. Auth., 87 NY2d 36, 41 [1995] ........................... 53 Wood v Lucy, Lady Duff-Gordon, 222 NY 88, 92 [1917] ............... : ............... 38, 42 STATUTES: CPLR § 213 (2) ............................................... 1, 4, 16- 22, 24-26, 36- 38, 44-46, 49 CPLR § 214 (2) .............................................................. 14, 19, 20, 24-26, 43-45, 48 11 NYCRR § 65-1.1 ................................................................................................ 13 11 NYCRR § 65-2.2 ............................................................................................... 12 11 NYCRR § 65-3.1 ................................................................................................ 13 11 NYCRR § 65.10 ........................................................................................... 44, 52 11NYCRR§65.15 .................................... ; ...................................................... 44, 52 Insurance Law§ 167, subd. 2-a ............................................................ 16, 17, 28, 31 Insurance Law§ 673 ................................................................................. 43, 44, 46 Insurance Law§ 3420 ..................................................................... 11, 15, 22, 32, 33 Insurance Law § 5102 ............................................................................................... 8 Insurance Law § 5103 ................................. 2, 6-8, 12, 16, 18, 24, 25, 27, 34, 46, 49 Insurance Law§ 5104 ....................................................................................... 43, 46 Insurance Law § 5105 ................................................................................. 44, 45, 52 Insurance Law § 5203 ...................................................................................... 44, 51 Insurance Law§ 5221 ....................................................................................... 44, 52 Vll Public Authorities Law§ 1203 .......................................................................... 39, 40 Public Authorities Law § 1215 ................................................................................ 29 Vehicle and Traffic Law§ 321 .................................................................. 6, 7, 25, 27 Vehicle and Traffic Law § 3 70 .......................... 2, 4-8, 10, 25, 27- 29, 31, 32, 49, 51 Vlll QUESTION PRESENTED: Question: Was the decision and order of the Appellate Division, Second Department dated January 20, 2016, which determined that an action to recover first-party no-fault benefits from a self-insured entity is subject to a six-year statute of limitations governing contractual obligations under CPLR § 213 (2), properly made ? Proposed Answer: Yes, the Appellate Division's determination was proper, as it was consistent with its own prior decisions, precedent from the Court of Appeals, and legislative history and intent behind the enactment of the applicable statutes and regulations. STATEMENT OF FACTS: On January 5, 2007, Plaintiff-Respondent (hereinafter "Respondent") brought an action in Queens Civil Court against Defendant-Appellant (hereinafter "Appellant"), seeking to recover $1,503 .40 in no-fault benefits, for services rendered from January 11, 2001 to August 23, 2001. Appellant interposed its Answer on January 25, 2007, and issue was subsequently joined. Appellant then moved for dismissal on the basis that Respondent failed to commence the subject action within a three-year statute of limitations. On December 4, 2007, the Civil Court denied Appellant's motion, stating that based upon the Appellate Division, Second Department holding of Matter of 1 Elrac, Inc. v. Suero, 38 A.D.3d 544 (App. Div., 2nd Dep't. 2007), self-insureds such as Appellant are subject to the six-year statute of limitations. Following this decision, Appellant moved to renew the December 4, 2007 decision based upon what it perceived as a change in case law. On July 27, 2011, the Civil Court granted Respondent's Motion to Renew, but adhered to its original decision, acknowledging that the existence ofElrac v. Suero and M.N. Dental Diagnostics, P.C. v. New York City Transit Authority, 82 AD3d 409 (App. Div., 1st Dept. 2011) creates a clear, "split in authority among the appellate departments as to the applicable statute of limitations." Specifically, the Civil Court held that such no-fault matters, "are arguably contractual in nature, even when dealing with a self-insured entity such as the Authority. Thus, the 2nd Department has found that such matters warrant imposition of a 6-year statute of limitations." Appellant then appealed the order of the Civil Court to the Appellate Term, Second Department, on the basis that the three-year statute of limitations applies to all matters involving Appellant Authority, and that this matter should subsequently be dismissed. On December 2, 2013, the Appellate Term affirmed the Civil Court's holding in Contact Chiropractic, P.C. v. New York City Transit Authority, 42 Misc. 3d 60 (App. Term, 2nd Dept, 11th & 13th Jud. Dists. 2014). The Appellate Term's rationale went beyond that of the underlying Civil Court, holding that pursuant to VTL § 370, Ins. Law§ 5103(a)(l), Matter of 2 Manhattan & Bronx Surface Tr. Operating Auth. v. Evans, 95 AD2d 470 (App. Div., 2nd Dept. 1983) and Mandarino v. Traveler's Prop. Cas. Inc. Co., 37 A.D.3d 775 (App. Div., 2nd Dept. 2007), public carriers that elect to self-insure are still subject to the six-year statute of limitations, '"where a plaintiffs action is based upon both a contractual obligation or liability,' and upon a, 'liability, penalty or forfeiture created or imposed by statute."' Appellant then moved for leave to appeal to the Appellate Division, of which the Appellate Term granted. On January 20, 2016, the Appellate Division, Second Department issued an order affirming the Appellate Term's order stating that "the Appellate Term correctly determined that an action by an injured claimant, or his or her assignee, to recover first party no-fault benefits from a defendant who is self-insured, is subject to the six year statute-of-limitations, since the claim is essentially contractual, as opposed to statutory in nature". ARGUMENT: I. Overview: Respondent is directly suing Appellant pursuant the New York No-Fault Regulations pursuant to an assignment of benefits on an implied policy of insurance, for unpaid monies owed for chiropractic treatment performed for the benefit of assignor, Girtha Butler. The Appellate Division affirmed the Appellate 3 Term's determination, that an action to recover first-party no-fault benefits from a self-insured entity is subject to a six-year statute of limitations period governing contractual obligations under CPLR § 213 (2), as the claim is contractual in nature. The Appellate Division's decision should be affirmed as the decision was properly made in accordance with its own prior decisions, Court of Appeals precedent and legislative intent behind the applicable statutes and regulations to treat insurers and self-insurers equally, and to provide maximum protection to innocent victims of self-insured motorists. II. Applicable Statutes: A. Vehicle and Traffic Law§ 370: Self-insurers are permitted to self-insure their vehicles pursuant to Vehicle and Traffic Law§§ 370(1) and (3). Although VTL § 370 does not expressly refer to no-fault benefits, VTL 370 is the doctrinal source of self-insurers' ability to insure against liability in the first instance and is therefore applicable in this matter. VTL § 370(1) mandates that: ( e )very ... corporation engaged in the business of carrying or transporting passengers for hire ... except...owned and operated by a municipality ... shall file with the commissioner of motor vehicles ... a corporate surety bond or a policy of insurance 4 Vehicle and Traffic Law§ 370 (3) states that in lieu of providing a surety bond or policy of insurance, "a corporation engaged in the business of renting or leasing motor vehicles ... may file a certificate of self-insurance." VTL § 370(3) also states that corporations engaged in the business of renting or leasing rental vehicles "shall be subject to the provisions of this section in the same manner and to the same extent" as corporations engaged in the business of carrying or transporting passengers for hire. Thus, VTL § 370(3) provides an exception for two types of entities to file a certificate of self-insurance in lieu of a bond or insurance policy: those engaged in the business of renting or leasing vehicles (rental car companies such as Hertz or Elrac) and those engaged in the business of carrying or transporting passengers for "hire" (taxi or bus companies such as Appellant). Here, per the Appellate Division, Second Department in Thom, a decision which was affirmed by this Court, VTL 370(1) applies to Appellant, New York City Transit Authority (hereafter "the Authority"). Specifically, the Appellate Division stated: by the specific language of section 3 70 the authority is subject to its requirements since: (1) it is (at the least) a "corporation"; (2) it is in the business of carrying passengers for hire; and (3) it is not a municipality, which is the only relevant exception contained in section 370. Thom, 70 AD2d 158 at 171, aff'd 52 NY2d 1032. See also Manhattan & Bronx 5 Surface Tr. Operating Auth. v Evans, 95 AD2d 470, 472 [2nd Dept 1983].)("Evans")(" MABSTOA, a self-insured public benefit corporation [a subsidiary of Authority], is bound by ... VTL 370(1)" and see Allstate Ins. Co. v. Shaw, 52 NY2d 818, 821 (N.Y. 1980)("Shaw")("Buses and taxis" are examples of motor vehicles utilized by "corporations engaged in the business of carrying or transporting passengers for hire" in VTL § 370(1)). VTL § 370(3) also applies to Appellant. As VTL § 370(3) allows rental companies to file a certificate of self-insurance in lieu of a bond or an insurance policy to demonstrate its financial security to cover minimum motor vehicle liability insurance payments and VTL § 370(3) applies to corporations engaged in the business of carrying or transporting passengers for hire in the same manner and to the same extent as rental companies, then, pursuant to VTL § 370(3), the Authority is permitted to file a certificate of self-insurance. B. Vehicle and Traffic Law§ 321 and Insurance Law§ 5103: It is undisputed that part of the minimum motor vehicle liability that the Authority must cover is first party, personal injury protection benefits, otherwise known as "no-fault" benefits, pursuant to VTL § 321(2) and Insurance Law§ 5103. VTL § 321(2) states "that any motor vehicle exempted in [VTL § 321(1)] from the provisions of any portion of this article shall be subject to the provisions of article fifty-one of the insurance law". VTL § 321 (1) provides that Article 6 6 "shall not apply to any motor vehicle for the operation of which security is required to be furnished under [VTL § 370]. As the Authority's financial security (certificate of self-insurance) is required to be furnished under VTL § 3 70, it is exempted from VTL § 370(1). Therefore, VTL § 321(2) and Insurance Law§ 5103 applies to the Authority. Per Ins. Law§ 5103 (a) (1), insurers and self-insurers, alike, shall be liable for the payment of first party benefits to eligible injured persons. Specifically, Ins. Law§ 5103 (a)(l) states: states: Every owner's policy of liability insurance issued on a motor vehicle in satisfaction of the requirements of article six or eight of the vehicle and traffic law shall also provide for; every owner who maintains another form of financial security on a motor vehicle in satisfaction of the requirements of such articles shall be liable for ... the payment of first party benefits to: (1) Persons, other than occupants of another motor vehicle ... for loss arising out of the use or operation in this state of such motor vehicle. With regards to occupants of a bus specifically, Ins. Law § 5103 (a )(1) 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. 7 As can be seen, no-fault coverage is part and parcel of the liability coverage provided, whether by surety bond, policy of insurance or self-insurance. Presbyterian Hosp. in City ofN.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Keith v Liberty Mut. Fire Ins. Co., 118 AD2d 151 [2d Dept 1986]. This Court specifically has stated that Appellant is required to provide no- fault benefits, same as an insurer. See e.g. Dermatossian v NY City Tr. Auth., 67 NY2d 219, 224 [1986])( "an insurer, or self-insurer as in the instant case, is liable for the payment of first-party benefits to persons 'for loss arising out of the use or operation' of a motor vehicle (Insurance Law§ 5103 [a] [1])"). First-party benefits are defined as "payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle (Insurance Law§ 5102 [b])". Id. at 222, n 3. A passenger injured on the Authority's bus, is a covered person entitled to first-party benefits under Insurance Law§ 5102 [b]. Id. Here, in accordance with Ins. Law§ 5103 (a)(l), the Authority is a self- insurer as it maintains "another form of financial security" for its motor vehicles, specifically, a certificate of self-insurance for its buses, in satisfaction of the requirements of Article 8 (VTL § 370). It is undisputed that the injured party herein was a passenger of Authority's self-insured bus, not an occupant ofal1other motor vehicle, and said injured person did not have a household policy of 8 insurance, and thus the Authority, as the insurer of the bus, is obligated to provide said injured passenger no-fault benefits in this case. III. This Court Attaches "No Legal Significance" to the Manner in Which a Vehicle Owner Insures its Vehicle, by Self-Insurance or by Policy of Insurance: This Court has stated numerous times that there is no distinction under the Insurance Law, which includes no-fault and uninsured motorist legislation, between the liabilities of an insurer, who carries a policy of insurance and a self- insurer who maintains another form of financial security. With regards to self-insurers in the no-fault context, see Ryder Truck Lines, Inc. v Maiorano, 44 NY2d 364,372 (1978)("Ryder"). In Ryder, a driver sought no- fault benefits from his employer, in the employer's capacity as self-insured owner of the vehicle, after the driver was injured in a one-vehicle accident while operating his employer's motor vehicle. This Court stated that with respect to the liability of self-insurers under the no-fault law, we attach no legal sign~ficance to whether the employer is self- insured or carries insurance coverage. In both instances, the no-fault law places financial responsibility on the employer, as an owner. The employer. .. may then choose one method or the other to make economic provision to assure discharge of its financial obligations. Its liability, however, is unaffected by the implementing mechanism it selects. Ryder, 44 NY2d at 372. 9 With regards to self-insurers in the uninsured motorist (UM) context, see Elrac, Inc. v Ward, 96 NY2d 58, 74-75, 77, 748 N.E.2d 1, 724 N.Y.S.2d 692 [2001 ]("Ward"): it is well settled that section 370 imposes the same requirements on rental companies, regardless of whether they self-insure or purchase outside insurance ... companies that self-insure under section 370 (3) must provide the same minimum coverage as companies that purchase insurance policies or post surety bonds under section 370 (1 ). Specifically, in Allstate, the Court held that a self-insured automobile leasing company was required to provide uninsured motorist coverage, which all motor vehicle liability insurance policies were required to provide under the Insurance Law. The Court stated that the provision in section 370 (3) permitting self-insurance was "in no way intended to decrease the insurance protection presently available" ( id., at 820). By electing to self-insure under section 370, ELRAC undertook the obligation to provide primary insurance coverage for itself and its permissive users up to the statutory minimums. With that, ELRAC undertook all the duties and responsibilities of an insurer. As noted, ELRAC may not, merely because it is a self-insurer, decrease the obligations that it owes to its insureds (see, Allstate Ins. Co. v Shaw, supra, 52 NY2d, at 820). Ward, 96 NY2d at 77. Therefore, as this Court has set forth in Ryder, Ward, and Shaw there is no legal significance under the no-fault or UM law attached to the manner in which a vehicle owner insures its vehicle. Whether the owner chooses to insure its vehicle 10 through a policy of insurance or through a certificate of self-insurance, the liability is unaffected by the implementing mechanism it selects. IV. Statutorily Mandated Coverage will be Impliedly Included in an Insurance Policy or Certificate of Self-Insurance if Omitted: Insurers and self-insurers are required to include the statutory minimum amounts of UM and no-fault coverage in their forms of insurance. If omitted, said provisions will be impliedly included. With regards to UM coverage, Insurance Law § 3420 (f) (1) requires "every policy of motor vehicle liability insurance to contain a provision requiring payment ... that the insured is entitled to recover as damages from the owner or operator of an uninsured motor vehicle". UM provisions will be read into an insurance policy if said provisions are omitted. Insurance Law§ 3420 (f) (1) states that "any such policy which does not contain the aforesaid provisions shall be construed as if such provisions were embodied therein". See also De Luca v Motor Veh. Acc. Indem. Corp., 17 NY2d 76, 80 [1966]. UM provisions will similarly be read into a certificate of self- insurance if said provisions are omitted, as established by this Court. See e.g. Allstate Ins. Co. v. Shaw, supra; Matter of Country-Wide Ins. Co. [Manning], 96 AD2d 471 [1983], 11 affd 62 NY2d 748 [1984]; Matter ofElrac, Inc. v Exum, 18 NY3d 325, 327 [201 l]("Exum"). See also Elrac, Inc. v. Suero, 38 A.D.3d 544 (App. Div., 2nd Dep 't. 2 007)("Suero "). While the above decisions involved UM and the claim herein is for no-fault, there is no discernible difference between UM and no-fault claims under the law. No-fault coverage, like UM coverage, is statutorily mandated. Specifically, Insurance Law§ 5103 (a) imposes liability for the payment of first-party no-fault benefits upon insurers by requiring that "[e]very owner's policy of liability insurance ... shall provide for ... the payment of first party benefits." Similarly, 11 NYCRR § 65-2.2, provides in accordance with [Ins. Law, Art. 51 ], a self-insurer shall pay first-party benefits to reimburse for basic economic loss sustained by an eligible injured person on account of personal injuries caused by an accident arising out of the use or operation of a motor vehicle ... No-fault provisions, like UM provisions, will be read into an insurance policy if said provisions are omitted. Insurance Law § 5103 (h) states that [a ]ny policy of insurance obtained to satisfy the financial security requirements of article six or eight of the vehicle and traffic law which does not contain provisions complying with the requirements of this article [article 51], shall be construed as if such provisions were embodied therein. 12 Similarly, 11 NYCRR § 65-1.1 states that the mandatory personal injury protection (no-fault) endorsement must be included in every automobile liability insurance policy issued in the state. This Court held in Ryder that there is "no legal significance" as to whether a vehicle owner is insured or self-insured in the no-fault context, as the owner's "liability is unaffected by the implementing mechanism it selects". Similarly the Insurance Law and Department Regulations are practically identical with regards to insurers and self-insurers and consistently, expressly state that no-fault claims should be similarly applied to insurers and self-insurers. See e.g. 11 NYCRR § 65-3.1 ("the rules for the settlement of claims for first-party benefits shall apply to insurers and self-insurers alike"). Consistent with the above precedent and rationale, the Appellate Term, Second Department held that no-fault provisions will be read into a certificate of self- insurance if said provisions are omitted. See Spring World Acupuncture v. New York City Tr. Auth., 38 AD3d 544 (App. Term, 2nd Dept., 2009) ("Spring World"). Said case has identical facts to the case herein and was rendered against Appellant. In Spring World, a provider sought to recover assigned first-party no-fault benefits from New York City Transit Authority after the assignor was injured on the Authority's bus. The Authority asserted that since its liability as a self-insurer 13 arose solely from the no-fault law and the regulations promulgated there under, the action was time-barred by the three-year statute of limitations of CPLR 214(2). The appellate court held that "an action to recover first-party no-fault benefits from a self-insured entity is subject to the same six-year statute of limitations as an action against an insurer pursuant to the policy" because "(t)he legal requirements imposed upon a self-insured entity are coextensive with the requirements imposed upon other insurers". The rationale was identical to this Court's rationale in Ward, and Shaw, infra, as well as the Second Department, Appellate Division's rationale in Suero and Evans, infra. A self-insurer undertakes "all the duties and responsibilities of an insurer ... [and] may not, merely because it is a self-insurer, decrease the obligations that it owes to its insureds" (ELRAC, Inc. v Ward, 96 NY2d 58, 77, 748 N.E.2d 1, 724 N.Y.S.2d 692 [2001]). Self-insurers have the same statutory responsibility as other insurers to provide uninsured motorist (UM) coverage to a claimant (see Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818, 418 NE2d 388, 436 NYS2d 873 [1980]; Matter of Manhattan & Bronx Surface Tr. Operating Auth. v Evans, 95 AD2d 470, 467 NYS2d 387 [1983]). A claim against a self-insured entity for UM benefits, while statutorily mandated, is considered "contractual rather than statutory in nature" and, as such, has been held to be subject to a six-year statute of limitations (see Matter of ELRAC Inc. v Suero, 38 AD3d 544, 545, 831 NYS2d 475 [2007]). Spring World, 38 AD3d 544 at 545. Furthermore, the Court stated that there is no discernible difference between UM and no-fault benefits under the law: 14 Like the UM endorsement, the personal injury protection endorsement [no-fault] is also mandatory. Just as the rights and remedies of an injured claimant are set forth in the mandatory UM endorsement, so are the rights and remedies of an insured person set forth in the mandatory no-fault endorsement. Since the right to obtain UM protection from a self-insurer "is no less than the corresponding right under a policy issued by an insurer" .. .it follows that the right to obtain first-party no-fault coverage from a self-insurer is no less than the right to obtain the same from an insured under a policy ... Spring World Acupuncture, 24 Misc 3d 39, 884 NYS2d 556, 558. Therefore, consistent with the Insurance law and precedent from this court and the Appellate Division, Second Department, the Appellate Term, Second Department in Spring World held that an action to recover first-party no-fault benefits from a self-insured entity is subject to the same six-year statute of limitations as an action against an insurer pursuant to a policy, as the rights and remedies set forth in the no-fault endorsement, like the rights and remedies set forth in the UM endorsement, are identical for insurers and self-insurers. As there is "no legal significance" to whether a vehicle owner is self- insured or carries insurance coverage, as the owner's "liability is unaffected by the implementing mechanism it selects" (Ryder) and there is no discernible difference between UM and no-fault under the Insurance law with regards to self-insured's legal obligations (Ryder, Ward, and Shaw), it is only logical and consistent with this Court's prior decisions that the aforementioned UM cases should apply in the no-fault context when it comes to self-insurers. Just as Insurance Law§ 3420(f)(l) 15 has been interpreted to read in an "uninsured motorist" endorsement which has been omitted into a certificate of self-insurance, same as its read into a policy of insurance, so too should Insurance Law § 5103(h) be interpreted to read in a no- fault endorsement which has been omitted into a certificate of self-insurance, same as its read into a policy of insurance. V. It is Well-Settled That Claims Brought Pursuant to Statutorily Mandated Provisions Within a Policy of Insurance are Contractual in Nature and Governed by the Six-Year Statute of Limitations: This Court has held that the six-year statute of limitations governing contractual obligations, as provided in CPLR § 213(2), applies to a cause of action based upon wrongfully withheld, statutorily mandated uninsured motorist benefits. See De Luca 17 NY2d at 79 (1966). In De Luca, the injured party sought UM benefits from MVAIC pursuant to the rider in his policy after being struck and injured by a motorist driving an uninsured automobile. At the time De Luca was decided, MV AIC was the entity to which all UM claims were brought pursuant to a rider in the claimants' insurance policy, despite there being no contract between the injured parties and MVAIC itself. Importantly, this Court acknowledged that the UM provision in the policy was statutory in origin and mandatorily included; "(w)e deal here not only with a narrow arbitration provision ... but with language of statutory origin, language which the Legislature mandated be written into the policy (Insurance Law,§ 167, 16 subd. 2-a)". However, although the insurance coverage being sought from MVAIC was statutory in origin and included in the policy through statutory mandate, the claim seeking said coverage was governed by the contract statute of limitations because "(a)bsent the provision in the contract of insurance, there could and would be no conceivable basis for recovery against MV AIC". De Luca,17 NY2d at 80. Therefore, even though the claimants' rights to UM coverage originally derived from statute, and there was no contract of insurance between the entity providing said coverage (MV AIC) and the individuals receiving the coverage (injured claimants), the claimants' action was still contractual rather than statutory in nature because said claim could not be brought unless insurance coverage existed. See also MVAIC v Natl. Grange Mut. Ins. Co., 19 NY2d 115, 118 (1967) (although the endorsement was required by.Ins. Law§ 167(2-a), the obligation to provide benefits to the insured was, nevertheless, "contractual rather than statutory in nature", since "absent the provision in the contract of insurance, there could and would be no conceivable basis for recovery" against the insurer). This Court has also expressly stated that the six-year statute of limitations, as provided in CPLR § 213(2), applies to a cause of action based upon wrongfully withheld no-fault benefits. Gurnee v Aetna Life & Cas. Co, 55 NY2d 184 (1982)("Gurnee"). In Gurnee, Plaintiffs brought breach of contract actions seeking 17 lost wages (a form of no-fault benefits), after being injured in vehicles insured by Defendant insurers. Id. at 190-191. This Court acknowledged that the no-fault provisions being sued upon were included within the insurance contracts due to statutory mandate, specifically, then Insurance Law section 671, now section 5103). Id. at 190. The no-fault benefits sought constituted "recovery to which [Plaintiffs] were statutorily entitled". Id. at 194. However, this Court expressly stated that actions "requiring defendants to pay covered persons according to the command of a statute governing their insurance policies" are governed by the six- year Statute of Limitations governing contractual obligations; "it should be noted that the applicable six-year Statute of Limitations has already extinguished a portion of the insurers' potential liability (see CPLR 213) ".Id. at 193, 194. Therefore, there is no question that a six-year Statute of Limitations minimally applies to no-fault claims derived under a policy of insurance, despite the fact that no-fault provisions in an insurance contract are statutorily mandated. Appellate divisions of the first, second and third departments have followed that rule in the past, citing to Gurnee as precedent, on the theory that a no-fault claimant's right (or that of his or her assignee) to recover first-party benefits derives primarily from the terms of the relevant contract of insurance. See Hanover Ins. Co. v Fleisher, 96 AD2d 881, 882, 465 NYS2d 788 [1983](claim brought by the employee of a vehicle owner "against the no-fault insurers is based on a policy 18 of insurance under which he is a recognized third-party beneficiary; therefore, the proper limitation period for his cause of action is that applicable for contract actions, i.e., six years"); Nahmias v Merchants Mut. Ins. Co., 91 AD2d 680, 457 NYS2d 137 [1982]("the [pedestrian's no-fault action] was timely commenced under the applicable six-year Statute of Limitations"); Matter of New York Cent. Mut. Fire Ins. Co. v Czumaj, 9 AD3d 833, 835, 780 NYS2d 254 [2004] [4th Dept, Green and Scudder, JJ., dissenting](" the [insured's] demand (for arbitration seeking no-fault benefits for injuries he sustained in a motor vehicle accident) was properly served within the applicable six-year statute of limitations"); Benson v Boston Old Colony Ins. Co., 134 AD2d 214, 521NYS2d14 [1987]( pedestrian's no-fault action constitutes a "breach of contract action for the carrier's failure to pay the full amount due and owing under section 671 of the Insurance Law. The applicable Statute of Limitations is, therefore, six years (CPLR 213 [2])."); Micha v Merchants Mut. Ins. Co., 94 AD2d 835, 463 NYS2d 110 [1983]) ("Plaintiffs ... action clearly seeks recovery of damages for defendant's alleged breach of its obligation to pay first-party benefits, an obligation created by contractual provisions contained in its insurance policy as required by law (Insurance Law, § 672), and thus the action must be commenced within six years ( CPLR § 213)". Throughout its Brief, Appellant states that all no-fault cases are statutory in nature, so as to place itself within the three-year statute of limitations. This, 19 however, is a curious proposition, since, if true, all no-fault matters would be subject to the three-year statute of limitations under CPLR § 214(2). Clearly, this is not the current state of the law anywhere in New York State, particularly in light of this Court's statement in Gurnee that six-year Statute of Limitations applies. Thus, clearly not all no-fault matters are governed by the three- year statute of limitations. VI. Actions Seeking Statutorily Mandated Insurance Under a Certificate of Self- Insurance are Contractual in Nature and Governed by the Six-Year Statute of Limitations: The Appellate Division, Second Department consistently holds that actions seeking statutorily mandated insurance under a certificate of self- insurance are contractual in nature and governed by the six-year statute of limitations under CPLR § 213 (2). UM claims under a certificate of self- insurance are governed by the six year statute-of-limitations, despite the fact that said provisions are statutorily mandated. Suero, supra. In Suero, the injured passengers filed arbitration for UM benefits against Elrac -a self-insured car rental company- three and a half years after a collision with an uninsured motorist. Id. at 544. Elrac commenced a proceeding to stay the arbitration on the ground that the demand for arbitration was barred by the three-year statute of limitations enumerated in CPLR § 214(2). Id. at 545. The Appellate Division determined the claim was governed by the six-year statute of 20 limitations contained within CPLR § 213(2), governing contractual liabilities. Id. Specifically, the court held: Id. at 545. (t)he respondent's claim for uninsured motorist benefits against a self-insured vehicle owner, while statutorily mandated, remains "contractual rather than statutory in nature" ... and as such, is subject to the six-year statute of limitations. Citing to both the First Department and Court of Appeals, the Appellate Division in Suero reasoned, "(f)rom an injured claimant's perspective, "[t]he right to obtain uninsured motorist protection from a self-insurer is no less than the corresponding right under a policy issued by an insurer". Id. The Appellate Division later applied the holding in Suero to self-insured Appellant herein, in Matter of NY City Tr. Auth. v. Hill, 968 N.Y.S.2d 134 (App. Div. 2nd Dept. 2013). In Hill, the Court determined that a passenger's demand for arbitration seeking UM benefits against the Authority after being injured on the Authority's bus was time-barred. The claim was filed more than seven and a half years after the subject accident and claims for uninsured motorist benefits against a self-insurer are subject to the six-year statute of limitations of CPLR § 213(2). Id. There are several cases with similar outcomes. See M:. Matter of NY City Tr. Auth. v Powell, 126 AD3d 705, 706 [2nd Dept 2015].)(the Authority's demand for UM benefits was timely as "the demand was filed within the six-year 21 limitations period for filing a claim for uninsured motorist benefits against a self- insurer."); Evans, 95 AD2d 470, 473 ("That the uninsured motorists coverage requirement applies to self-insurers is beyond cavil.)"; NY City Health & Hosps. Corp. v Degorter, 133 Misc 2d 93, 97 [Sup Ct, NY County 1986].)("The claim ... for uninsured motorist benefits exists solely by reason of the separate coverage required to be provided by Insurance Law§ 3420 (t), and is contractual in nature. Hence, the six-year Statute of Limitations applies ... This conclusion is not changed because petitioner has elected to provide such coverage as a self-insurer"). These decisions establish that an injured claimant or their assignee has six years to assert an uninsured motorist claim against self-insurers pursuant to CPLR § 213(2), regardless of the fact that no literal insurance policy was executed between the parties. VII. Liability to Provide Insurance Coverage is Derived From the Instrumentality of Insurance: An insurer's and self-insurer's liability, alike, is derived from the instrumentality of insurance coverage it chooses to provide. In other words, the actual possession of insurance coverage, either in the form of a policy or a certificate of self-insurance is a necessary pre-requisite for an insurer or self- insurer to become liable to provide statutorily required UM and no-fault coverage. 22 De Luca supra, Grange supra; Laba v Petrullo, 2003 NY Slip Op 50797[U] [App Term 2003]("Laba"). In Laba, Plaintiff passenger in an uninsured taxi, instituted a claim to recover no-fault benefits after being injured as a result of an accident caused by another vehicle. The court stated that Plaintiff-passenger could not collect no-fault benefits from the taxi she was occupying at the time of the accident. "Inasmuch as neither plaintiff nor the owner of the taxi cab had automobile insurance in effect at the time of the accident, plaintiff was precluded from maintaining an action under the No-Fault Law. "Laba supra. Laba establishes that a common carrier's obligation to provide no-fault benefits to its passengers is not exclusively statutorily imposed, even though the liability is originally derived from statute. If a common carrier's liability was exclusively statutorily imposed, the injured passenger in Laba could have obtained no-fault benefits from the owner of the taxi, despite the lack of insurance. However the possession of insurance was necessary to become liable under the no-fault law~ An "injured person" is not an "eligible injured person" entitled to first party benefits unless the vehicle owner has insured its vehicle. This case is consistent with the principle established in De Luca and Grange that even though the liability to provide insurance benefits originally derived from 23 statute, a claim seeking said benefits is still contractual rather than statutory in nature because said claim could not be brought unless insurance coverage existed. Therefore, De Luca, Grange and Laba establish that a contract of insurance or self-insurance is a necessary pre-requisite to liability in no-fault. But for a policy of insurance or certificate self-insurance, liability under Ins. Law § 5103 could not be imposed upon an insurer or self-insurer. VIII. When an Action is Based Upon Both a "Contractual Obligation or Liability" And Upon a "Liability, Penalty or Forfeiture Created or Imposed by Statute," the Longer, Six-Year Statute of Limitations, as Provided in CPLR 213 (2), is Applied to the Exclusion of the Three- Year Statute of Limitations Provided in CPLR 214 (2): The aforementioned cases establish that although an insurer or self-insurer's liability to provide insurance coverage may derive from the insurance law, said liability cannot be deemed to have arisen solely from statute as a claim seeking insurance benefits is fundamentally contractual in nature. In accordance with this Court's precedent, the Second Department, Appellate Division in Mandarino v. Travelers Prop. Cas. Ins. Co., 831 N.Y.S.2d 452 (App. Div. 2nd Dept. 2007), held as a matter of strict statutory interpretation, where the plaintiffs action is based upon both a "contractual obligation or liability" and upon a "liability, penalty or forfeiture created or imposed by statute," the longer, six-year statute of limitations, as provided in CPLR 213 (2), is applied to the exclusion of the three-year statute of limitations provided in CPLR 214 (2) ... Although the relevant terms of such contracts are mandated by various provisions of the Insurance Law, we find that the six- year statute of limitations provided in CPLR 213 (2) applies to 24 the exclusion of the three-year statute of limitations provided in CPLR 214 (2). Mandarino, 831 N.Y.S.2d at 454. Although the direct mandate to provide no-fault benefits is statutory, the obligation to provide said benefits is "fundamentally contractual in nature and not a creature of statute." Id. at 455. The "inclusion of terms in an insurance contract, which might be mandated by various statutes or regulations, does not necessarily alter the fundamentally contractual nature of the dispute." Id. Here, Appellant's obligation to provide no-fault benefits is both statutory and contractual in nature. The statutory obligation is derived from VTL § 3 70, VTL § 321(2) and Ins. Law§ 5103, discussed supra. The contractual obligation is derived from the certificate of self-insurance. Although no literal policy of insurance was executed between the Authority and injured passenger in this case, the contractual obligation to said passenger is implied under CPLR § 213(2); since every vehicle under Appellant's umbrella is self-insured, there is a de facto contract of insurance implied between Appellant and every individual riding these vehicles, to be explained further infra. It should be noted that the First Department accepts Mandarino as good law, as Mandarino is cited in First Department decisions. See e.g. Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319, 319-320 [1st Dept 2008]("Glenwood")("The claim, (for no-fault first-party benefits) is subject to the 25 six-year statute of limitations in CPLR 213 (2), not the three-year statute in CPLR 214 (2) ... Mandarino v [*320} Travelers Prop. Cas. Ins. Co., 37 AD3d 775, 831 NYS2d 452 [2d Dept 2007]) ... ".Therefore, as Mandarino is accepted as good law in both the first and second departments, and is consistent with this Court's prior decisions, Mandarino' s holding should be followed. Therefore, it is well-settled that an action seeking statutorily mandated insurance through a policy of insurance or through a certificate of self- insurance is contractual in nature and governed by the six-year statute of limitations, as the inclusion of terms which might be mandated by various statutes or regulations do not necessarily alter the fundamentally contractual nature of the dispute. Furthermore, per Mandarino, as Respondent's action is based upon both a "contractual obligation or liability" and upon a "liability, penalty or forfeiture created or imposed by statute," the longer, six-year statute of limitations governing contractual obligations is applicable. IX. Legislative History and Intent Behind Automobile Insurance and Self-Insurance Have Been Influential Factors Behind This Court's Decisions: Both statute and public policy require that motorists be insured against the risks of automobile travel" General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 , 387 NE2d 223, 414 NYS2d 512 [1979].. Simply stated, "[t]he whole object of 26 compulsory automobile insurance is to assure the protection of members of the public, who are innocent victims of motor vehicle accidents, by providing compensation for and protection from tortious wrongs committed against them" Rosado v Eveready Ins. Co., 34 NY2d 43 [1974]. See also YTL§ 310 (2). The Authority is required by YTL§§ 370, 321(2) and Ins. Law§ 5103 to provide minimum required no-fault benefits for the same reasons behind compulsory insurance. See Collins v Travelers Ins. Co., 105 Misc 2d 732, 734 [Sup Ct, Allegany County 1980] quoting Governor's Memorandum, NY Legis Ann, 1973, p 298)("0ne of the foremost legislative goals of no-fault is to assure that every auto accident victim will be compensated for his economic loss promptly and without regard to fault"). See also Colon v Aetna Cas. & Sur. Co., 48 NY2d 570, 575 [1980]("Intention of the Legislature in seeking an equitable distribution of compensation among accident victims is to assure maximum appropriate coverage of the new no-fault insurance program".). Legislative history and intent behind the enactment UM and no-fault coverage have been influential factors behind this Court's decisions. In Shaw, a passenger of a leased automobile, self-insured by rental corporation; Hertz, was injured where her car collided with another uninsured vehicle. Hertz's position was that as a self-insurer under YTL§ 370(3), it was not required to provide UM coverage. This Court concluded that Hertz's status as a self-insured did not excuse 27 it from its obligation of providing UM coverage to its passenger, as it was the Legislature's intent to provide maximum coverage to injured parties. Specifically, this court stated: The Legislature has specifically declared its grave concern that motorists who use the public highways be financially responsible to ensure that innocent victims of motor vehicle accidents be recompensed for their injuries and losses (VTL § 310). To this end (Ins. Law§ 167 (2-a)) requires that all motor vehicle liability insurance policies provide uninsured motorist coverage ... Because of the strong policy concerns which brought them into existence, the interpretation of statutes relating to uninsured motorist coverage must not be caught up in narrow and technical analysis. Instead, the provisions must be interpreted as a whole, giving the words a meaning which serves rather than defeats the over-all legislative goals. When the Legislature authorized the filing of a certificate of self-insurance by car rental companies to demonstrate their financial ability to respond to liability claims (VTL § 370(3)), it in no way intended to decrease the insurance protection presently available. The legislative history of (VTL § 370(3)) makes this clear. The bill jacket contains a memorandum from the Department of Motor Vehicles stating that the provisions "would not, by permitting self-insurance rather than requiring insurance, result in any diminution of the protection now afforded to users of [rental] vehicles or to other persons". If, ·despite this official articulation of the problem, self-insurers are exempted from providing uninsured motorist coverage, their privilege of saving insurance premiums would work the precise diminution of protection of highway users which the Legislature refused to countenance. 28 The second paragraph of (VTL § 370(3)) merely gives leasing companies an additional option to demonstrate their financial security: they may file a certificate of self- insurance in lieu of a bond or an insurance policy. Shaw, 52 NY2d 818, 818-821. In Thom, this court affirmed an Appellate Division, Second Department decision, which held that "the (Authority) must provide UM coverage for its passengers, and others, injured as a result of the operation of its vehicles", as the self-insurance option in VTL § 370(3) was not intended to exempt the (Authority) from the requirement of providing UM protection. Thom, 70 AD2d 158 at 159. The Court's decision, regarding Appellant herein, was heavily based in the history and intent behind the Legislature authorizing self-insurance. [The] authority has seized upon the privilege ... to opt to be an unregulated self-insurer (based on its belief that this would . reduce its expenses) to claim that it thereby became exempt from the 1971 requirement of providing uninsured motorist coverage for its passengers. (T)he 1953 and 1957 amendments to section 1215 of the Public Authorities Law in no way diminished the substantive rights of anybody, since it was assumed that the authority could properly handle compensation and motor vehicle liability claims without becoming insolvent, and that the cost of self-insurance would be less than that of insurance or indemnity bonds. There was every reason for a legislator to vote for such amendments and no apparent reason why he should not. It would be ironic that those privileges, so favorable to the authority, should be converted from their original intent so that the authority would not be subject to the substantive obligations of other carriers to 29 their passengers and other persons injured as the result of a motor vehicle accident. An analysis of the ad hoc exceptions shows that they were completely logical, since it was expected that they would reduce the administrative costs of the authority without any lessening of the substantive benefits to be obtained by the persons for whose benefit the general statutes were enacted. It would indeed be strange that a carrier was to be exempt from the obligation to provide uninsured motorists coverage when the owner of even a single vehicle is required to provide it -- merely by the fortuity that it had chosen the self-insurance option as to financial security and safety responsibility. Thom 70 AD2d 158, 159, 167-168, 171. The no-fault legislation was intended to provide maximum coverage to injured parties in fair exchange for their having to abandon their right to sue for pain and suffering. As this Court stated in Gurnee supra: The no-fault legislation foreclosed recovery for pain and suffering by persons who had suffered relatively minor injuries in automobile accidents, but balanced this by providing a means of obtaining prompt and full recovery for certain economic losses. Plaintiffs were denied the ability to sue for pain and suffering, yet they were also denied the full recovery to which they were entitled under that scheme. The un-faimess to such injured persons outweighs whatever financial burden may be imposed on insurers. Gurnee, 55 N.Y.2d at 193. 30 It is clear that the Legislature only authorized self-insurance as a means of avoiding the high ·cost of insurance while balancing the public policy concerns that all vehicles registered in this state be financially able to respond to damages in the event of an accident. The Legislature did not intend for such option to provide self- insurers with a legal advantage over regular insurers and against innocent, injured persons. That applies to private and municipal self-insurers, alike. See e.g. Syracuse v Utica Mut. Ins. Co., 61NY2d691, 693 [1984]("by electing to be self- insured the municipality stood in the same position as any other insurer under the No-Fault Law"); McKenna v. Nassau County, 61 N.Y.2d 739, 742 (N.Y. 1984) ("municipal self- insurers should be treated, under the No-Fault Law, in the same manner as any insurance company"); Manning, 96 A.D.2d at 472 affd. 62 N.Y.2d 748, ("Whereas DOT may be authorized to be a self-insurer instead of procuring a policy from an insurer [Vehicle and Traffic Law,§ 370], such permission to 'self- insure' was not intended by the· Legislature as a diminution of the uninsured motorist protection afforded to users of insured vehicles or other persons"); Evans 95 A.D.2d at 4 72("Without a doubt, it was the intent of the Legislature that all claimants entitled to uninsured motorist coverage be treated the same, regardless of whether they were dealing with a self-insurer or an insurer"); Manhattan & Bronx Surface Tr. Operating Auth. v Coccia, 118 Misc 2d 378, 379-381 [Sup Ct, Kings County 1983] ("pursuant to Ins. Law§ 167 (2-a), MABSTOA is statutorily 31 required to submit to arbitration. To hold otherwise would create an unfair and unintended dichotomy between insurers and self-insurers"). It is the Appellant who chose to be self-insured as a means of presumably cutting costs and should not be rewarded with a shorter statute of limitations under the guise that its obligations are created solely by statute. X. A Comparison of the Substantive Obligations Under the Insurance Law Between Insurers and Self-Insurers, as Well as Legislative Intent Behind the Authorization of Self-Insurance, is Relevant to Determining the Nature of a Self-Insurer's Liability: As previously established, the substantive obligations under the Insurance law for insurers and self-insurers are the same. However, despite Appellant's insistence to the contrary, a comparison of said obligations is relevant to determining the nature of the liability, because of the Legislature's intent behind authorizing self-insurance was that they should be treated the same as insurers. Exum, supra. In Exum, a driver of a self-insured rental car business (Elrac) sought UM benefits from his employer after getting into an accident with another car, driven by a person without liability insurance. "Elrac was self-insured, as allowed by [VTL § 370 (3], and thus had not obtained an insurance policy to cover the car Exum was driving". Exum, 18 NY3d at 327. Regardless of the fact that self- insurers are required to provide UM benefits to occupants of its vehicles pursuant to statute, Insurance Law § 3420, and regardless of the fact that there was no policy 32 of insurance covering Elrac's vehicle, this Court deemed Elrac's obligation to provide statutorily mandated UM benefits to the driver contractual in nature. Legislature's intent behind authorizing self-insurance was a determinative factor in this Court's decision. Specifically this court stated: Insurance Law § 3420 (f) (1) requires every policy of motor vehicle liability insurance to contain a provision requiring payment to the insured of ... damages from the owner or operator of an uninsured motor vehicle. In Shaw ( 52 NY2d 818, 418 NE2d 388, 436 NYS2d 873 [1980]), we considered the application of this requirement to self-insurers, and held that a self-insurer had the same liability for uninsured motorist coverage that an insurance company would have. We said that, by authorizing self-insurance, the Legislature "in no way intended to decrease the insurance protection presently available" (id. at 820). Exum, 18 NY3d at 327. An action against a self-insurer to enforce the liability recognized in Shaw is, in our view, essentially contractual. The situation is as though the employer had written an insurance policy to itself, including the statutorily-required provision for uninsured motorist coverage. Id. at 328. In order to determine the nature of the self-insurer's liability, this court looked to the identical liability that an insurer would have in the same situation under a policy of insurance. This court presumably did so in an effort to serve the Legislature's goal of providing innocent covered persons equal protection under a certificate of self-insurance as under a policy of insurance. For this reason, this 33 Court determined that the obligation to provide UM benefits for insurers and self- insurers is identical in substance and in nature. The liability is identical in substance, in that a self-insurer is required to provide the same amount of UM benefits as an insurer under Insurance Law, under the same circumstances. The liability is identical in nature, "essentially contractual", for an insurer and self- insurer, alike, as they both agree to provide UM coverage as a necessary component of entering into their respective businesses. Regardless of the instrumentality used to carry out the agreement to provide said coverage, the agreement itself is "essentially contractual". Thus, the liability to provide UM benefits arises out of the contractual agreement to provide coverage for insurers and self-insurers, alike. The same principles in Exum apply to self-insurers in the no-fault context. Insurers and self-insurers have identical liability under Insurance Law§ 5103, in substance and in nature. The liability is identical in substance, as they are both required to provide a minimum amount in no-fault personal injury protection benefits to persons whose injuries arise out of, or in connection with the use and operation of the insured vehicle. The liability is identical in nature, "essentially contractual", as an insurer and self-insurer, alike, both agree to provide no-fault coverage. Regardless of the instrumentality used to carry out the agreement to provide said coverage, the agreement itself is contractual. 34 Therefore, the liability to provide no-fault benefits arises out of the contractual agreement to provide said coverage. The situation is as though the Authority as a self-insurer, like the self-insurer in Exum, wrote an insurance policy to itself, including the statutorily-required provision for no-fault coverage. Therefore, the liability to provide no-fault benefits, like the liability in Exum to provide UM benefits, is "essentially contractual". As the liability for no-fault benefits arises out of contract, the statute of limitations to bring a no-fault action against a self-insurer is six years. As this Court has determined the obligations of insurers and self-insurers under the Insurance Law is relevant to determining the nature of the action, and the nature of the action is directly relevant to determining the appropriate statute of limitations, Appellant's insistence that the obligations of insurers and self-insurers under the Insurance Law is irrelevant to the issue of the appropriate statute-of- limitations is in direct conflict with Court of Appeals precedent. XI. An Action to Recover Statutorily- Mandatory Insurance Benefits is Predicated on the Contractual Obligation to Assume the Risk of Loss Associated With the Mandated Coverage in Exchange for a Benefit to The Insurer and Self-Insurer: In Shutter v Philips Display Components Co., this court explained why an action to recover UM benefits is contractual in nature. Specifically, an action to recover UM benefits "is predicated on that insurer's contractual obligation to 35 assume the risk of loss associated with an uninsured motorist on the insured's behalf in exchange for the payment of premiums". Shutter v Philips Display Components Co., 90 NY2d 703, 709 [1997]. Thus, insurers assume the risk of loss in exchange for a benefit- the benefit of receiving payment in the form of insurance premmms. Similarly here, an action to recover no-fault benefits is predicated on the self- insurer's contractual obligation to assume the risk of loss associated with injuries arising out of the use or operation of its motor vehicles, on its passengers' behalf, in exchange for the benefit of not having to issue an insurance policy and pay the associated costs with said issuance. Specifically, the City of New York waves a self-insured's obligation to issue an insurance policy, and the associated costs with said issuance, in exchange for the self-insurer meeting the minimum requirements of self-insurance, which includes the assurance of covering eligible injured persons in case of accident. Thus, the exchange is contractual for insurers and self-insurers alike, as they assume the risk of loss in exchange for a benefit; for insurers the benefit is receiving payment in the form of insurance premiums, for self-insurers, the benefit is not having to issue a policy and pay the associated costs with its issuance. XII. Action Arising From an Implied Contract is Governed by CPLR § 213 (2): 36 CPLR § 213(2) provides a six-year statute of limitations where the plaintiffs action is one based "upon a contractual obligation or liability, express or implied ... (emphasis added)". Here the action to recover no-fault benefits is based upon both a "liability, penalty or forfeiture, created or imposed by statute, and a "contractual obligation or liability, implied. It is now fairly well-settled that an action to recover assigned first-party, no- fault benefits under a policy of insurance constitutes a breach of contract action subject to the six-year statute of limitations contained in CPLR § 213 (2). Chester Med. Diagnostic, P.C. v. Kemper Cas. Ins. Co., 873 N.Y.S.2d 232 (N.Y. Civ. Ct. 2008); Mandarino supra; Benson v~ Boston Old Colony Ins. Co., supra; Glenwood, supra. This Court has expressly stated that the six-year statute of limitations, as provided in CPLR 213, applies to a cause of action based upon wrongfully withheld first-party benefits. Gurnee 55 NY2d at193. It is also well-settled by this Court that the six year statute of limitations governs implied contracts. See e.g. Reg. Econ. Comm. Act. Program, Inc. v Enlarged City Sch. Dist. of Middletown, 18 NY3d 474, 479 [2012]) ("a claim premised "upon a contractual obligation or liability, express or implied in law or fact," is generally governed by a six year statute of limitations. It is well-established contract law that "there is no distinction between agreements made by words and those made by conduct". Ahem v S. Buffalo R. 37 Co., 303 NY 545, 560 [1952]. An agreement by conduct does not differ from an express agreement, except in the manner by which its existence is established". (Ahem 560-61). Implied contracts are evidenced by the acts of the parties and not by their verbal or written words-true contracts which rest upon an implied promise in fact". Miller v. Schloss, 218 N.Y. 400, 406, 113 N.E. 337, 338 (1916). "A promise may be implied or inferred from the very transaction itself'. Sharp v Kosmalski, 40 NY2d 119, 122 [1976]. "In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look ... to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds ... Flores v Lower E. Side Serv. Ctr., 4 NY3d 363, 368- 369 [2005]. "In contracts it is the consent of the contracting parties which produces the obligation". Miller v Schloss, 218 NY at 408. "In determining the intention of the parties, the promise has a value. It helps to enforce the conclusion that the plaintiff had some duties". Wood v Lucy, Lady Duff-Gordon, 222 NY 88, 92 [1917]. Because every vehicle under Appellant's umbrella is self-insured, a de facto contract of insurance is implied under CPLR § 213 between the Authority and every individual riding these vehicles, as well as any pedestrians injured as a result of said vehicles' use and operation. In exchange for the City granting the Authority the right to self-insure its vehicles (the right to forgo issuing a literal policy of 38 insurance and the associated costs), the Authority assures the State, and by extension "covered persons", that it will pay for claims "arising out of or in connection with the operation, management and control by the Authority". Therefore, the Authority's promise to provide coverage to "covered persons" is inherent within its certificate of self-insurance. In fact, the Authority's promise to the City of New York to provide coverage originates back to its 1953 lease agreement with the City when the City first transferred its transit facilities, including the omnibus line [Public Authorities Law §1200 (15)] to the Authority. Said lease agreement was codified as Public Authorities Law § 1200 et seq.). See Public Authorities Law § 1203 (l)(a) "Transfer of transit facilities by the city to the authority". The lease contained a provision wherein it stated Authority "covenants" to cover the city for all liability arising out of Authority's control of the leased property in exchange for use and operation of its transit facilities. See Ortiz v NY City Tr. Auth., 30 Misc 3d 1208[A] [Sup Ct, NY County 2010]. Section 6.8 of the Lease provides: the Authority covenants that, during the term of this Agreement, it shall be responsible for the payment of ... any and all claims, actions or judgments, including compensation claims and awards and judgments on appeal, resulting from any accident or occurrence arising out of or in connection with the operation, management and control by the Authority of the Leased Property. 39 Additionally, the statutory language in Public Authorities Law § 1200 et seq., indicates this agreement between the City and Authority was authorized, not mandated. See Public Authorities Law §1203(1] ( ... "authorized the authority to take control. .. "). The statutory language similarly indicates that the Authority was authorized to self-insure its vehicles, not mandated. See Public Authorities Law § 1203(4): The city and the authority are hereby authorized and empowered to make or enter into any contracts, agreements, ... as may be necessary . . . to effectuate the purposes of this title and they shall have complete power and authority to do and to authorize the doing of all things, incidental, desirable or necessary to implement the provisions of this section. The Authority's agreement to the City of New York that it will provide coverage makes Authority's obligation to provide insurance coverage contractual in nature. As a result of said agreement, the Authority assumed duties towards those using its transportation system (passengers), and others injured as a result of its vehicles' use and operation (pedestrians). Furthermore, the Authority offers transportation services to people as part of a business. As a public carrier, the Authority engages in the business of transporting people for a fee, and offers its services to the general public under license or authority provided by a regulatory governmental body. While it is true the Legislature created the Authority and the government regulates and subsidizes 40 the Authority as a public carrier, the Legislature intended for the Authority to be self-sustaining business. See Weiss v New York, 275 N.Y.S.2d 557 (N.Y. Sup. Ct. 1966)(" It is the intent of the Legislature that the New York City Transit Authority be self-sustaining, and the Authority has the power to adjust its rates when necessary to maintain its operation on a self-sustaining basis"). The Authority runs a transportation business "for hire", and as such has a duty to its patrons and the public at large. The Authority objectively manifests its intent for no-fault benefits to be included with the transportation services it provides through its promise to the City of New Yorkto provide no-fault benefits in exchange for the ability to self-insure. As it is public knowledge that the Authority insures its vehicles, the Authority's assurance to the City to pay no-fault judgments in case of an accident makes it objectively reasonable for a passenger to assume that the transaction between the carrier and passenger- money for transportation services- impliedly includes within it, no-fault coverage. Even if the promise to provide coverage inherent within its certificate of self-insurance is not considered" a distinct promise" from the Authority to its passengers, the relationship between the two makes a promise to provide no-fault superfluous, particularly in light of the fact that it is public knowledge that Authority busses are self-insured. 41 Even if. .. there was no distinct promise ... the exaction of such a promise, in view of the relation, might well have seemed to be superfluous ... Though a promise in words was lacking, the whole transaction, it might be found, was 'instinct with an obligation imperfectly expressed. Sinclair v Purdy, 235 NY 245, 254 [1923] citing Wood v. Duff-Gordon, 222 N. Y. 88, 91. The transaction is "instinct with an obligation imperfectly expressed" to provide no-fault benefits in case an accident occurs during the provision of said services. A contract to provide no-fault benefits is implied within the parties transaction even in the absence of a written or oral agreement. Although the question of whether the Authority was obligated to provide no- fault coverage in this case is not in dispute, the issue that is in dispute is whether that obligation was, in part, contractual in nature. The obligation to provide no- fault coverage was indeed contractual, at least in part, as the promise was implied within the Authority's conduct of self-insuring its vehicles and running a transportation business for hire. The undertaking of each party to a contract includes any promise which a reasonable person in the position of the promisee would be justified in understanding were included. As it is public knowledge that Authority insures its busses in case of accidents, it is reasonable for a passenger to assume that said insurance is included as part of the transportation service provided. 42 With regards to pedestrians injured by an Authority bus, although pedestrians do not pay a fare, that does not change the fact that the pedestrian is entitled to no-fault benefits as a result of Authority's being engaged in the business of transporting passengers for hire. The pedestrian is an intended beneficiary of the Authority's agreement to self-insure its busses with the City, same as a pedestrian is an intended, beneficiary of a commercial carrier's agreement to insure a private vehicle owner's vehicle. XIII. This Court's Decisions in MVAIC v. Aetna and Aetna v. Nelson are Distinguishable From the Instant Matter: The facts in MVAIC v. Aetna Cas. & Sur. Co, 89 N.Y.2d 214 (1996) and Aetna Life and Cas. Co. v. Nelson, 67 N.Y.2d 169 (1986) are completely distinguishable from the facts of the case herein. In Aetna v. Nelson, Defendant- insureds had been compensated twice for the same medical expenses and lost earnings after sustaining injuries in a one-car accident; first by their own insurance company (Plaintiff) under the no-fault law, then Ins. Law art 18, now art 51 and subsequently by the State in settlement of a suit brought in the Court of Claims. Accordingly, in order to obviate what would have otherwise been a "double recovery", the insurer sued to recoup first-party benefits it had already paid under the no-fault law by enforcing a statutory lien, pursuant to then Insurance Law § 673 (2), now § 5104 (b ), against that portion of 43 the damages defendants received from the State. The issue presented to this Court was whether the insurer's action to eeforce a statutory lien, pursuant to Ins. Law§ 673 (2) was governed by the three-year Statute of Limitations applicable to liabilities created or imposed by statute [CPLR § 214 (2)], or by the six year "residual" Statute of Limitations [ CPLR § 213 (1)]. The Court stated: the No-Fault Law [presumably referring the no-fault law at issue in the case, Insurance Law§ 673 (2)], does not codify common-law principles; it creates new and independent statutory rights and obligations in order to provide a more efficient means for adjusting financial responsibilities arising out of automobile accidents . Furthermore, the court reasoned: MV AIC itself is a statutory creation (see, Insurance Law § 5203 [a]-[cl) and the rights conferred upon it under articles 51 and 52 of the Insurance Law to avail itself of the loss-transfer and responsibility-shifting provisions of the NF Law arise only by statut01y enactment or departmental regulations (see, Insurance Law§§ 5105, 5221 [b] [6]; 11NYCRR65.10, 65.15). Therefore, this Court held that since the insurer's right to enforce a statutory lien derives only from statute, said action is statutory in nature and the three year statute-of-limitations is applicable. In MVAIC v Aetna, Aetna denied coverage under an automobile liability policy, claiming that the policy had been cancelled prior to the subject accident. After paying no-fault benefits to the claimants, MVAIC sought to recoup those 44 payments from Aetna by demanding arbitration pursuant to Insurance Law § § 5105(a) and 5105(b). This Court determined that MVAIC's right to recovery was subject to the three year statute-of-limitations because MVAIC's obligation to pay no-fault benefits to an injured party "where the accident vehicle's insurer denies such coverage" and its right to reimbursement from the insurer were both created and imposed by statute ("purely statutory"), but for which they would not exist. The Second Department, Appellate Division in Mandarino supra distinguished both MVAIC v. Aetna Cas. and Aetna Life v. Nelson from a no-fault matter arising from a contractual agreement, like the one herein: MVAIC v. Aetna is distinguishable from the present case because it did not involve a claim asserted by an insured (or his or her assignee) directly against his or her no-fault insurer. . .In seeking recoupment, MV AIC asserted a right of action against Aetna that, in addition to being unknown at common law, could not properly be viewed as arising out of any contract. Indeed, Aetna and MVAIC had no contract between themselves. It was under these circumstances that the Court of Appeals held that MV AIC's claim was governed by the three-year statute of limitations provided in CPLR 214(2). Mandarino 37 A.D.3d at 776-77. With regard to Aetna Life v. Nelson, the court in Mandarino stated: The defendant's reliance upon Aetna Life & Cas. Co. v Nelson .. .is also misplaced ... Aetna Life sought to enforce a lien on (a) judgment in order to recoup its payment of first-party benefit.. .. In arguing that its claim was not time-barred, Aetna Life relied upon the "residual" six-year statute of limitations set forth in CPLR 213 (1 ), and did not argue that its claim sounded in contract. In finding that the applicable statute of limitations was the three-year term provided in CPLR 214 (2), the Court of 45 Appeals noted that the right to recoupment being pursued by Aetna Life was "made available to [it] pursuant to Insurance Law§ 673 (2) [currently section 5104 (b)]" (67 NY2d at 175). In contrast to MVAIC v Aetna and Aetna Life v Nelson, the instant case involves a dispute between the defendant, an insurer, and the plaintiff, an insured's assignee, regarding the recovery of no-fault benefits under the terms of an insurance policy. Although the terms of the insurance policy may be mandated by various provisions of the Insurance Law, this does not alter the fact that the dispute is fundamentally contractual in nature and not a creature of statute. Accordingly, the six-year statute of limitations set forth in CPLR 213 (2) applies .. . (see Gurnee v Aetna Life & Cas. Co., supra). Mandarino 37 A.D.3d at 777-78. Here, the Respondent provider 1s directly sumg Appellant Authority pursuant to an assignment of benefits on an implied contract of insurance, for unpaid monies owed for chiropractic treatment performed upon the assignee. Unlike the actions in MVAIC v. Aetna and Aetna Life v Nelson, the action here, like the actions in Mandarino and Gurnee discussed supra, arises both from the breach of a contractual agreement to provide coverage and from statute (Ins. Law §5103, etc). The only difference between the case herein, and Mandarino and Gurnee is the instrumentality elected to manifest the agreement; the insurers in Mandarino and Gurnee elected to insure through a policy of insurance and the Authority herein elected to insure through a certificate of self-insurance. In both cases, there is an agreement to provide insurance. 46 To the contrary, in MVAIC v. Aetna, the insurer's action did not arise out of any agreement between the two insurers, as Aetna never agreed prior to the accident to reimburse MV AIC incase it denied its insureds no-fault coverage. Similarly, the insureds in Aetna Life v Nelson did not agree in the insurance contract to pay a lien on a judgment to the insurer in case of "double recovery", at least presumably, as the Plaintiff insurer in that case did not argue that its claim sounded in contract. Therefore, the Plaintiffs' rights of recovery in MVAIC v. Aetna, and Aetna Life v Nelson derived exclusively from statutory enactment, not contract. While providing no-fault benefits to a covered person is statutorily mandated, the obligation does not "arise only by statutory enactment". The obligation of a self-insurer to provide no-fault benefits would not arise but for the certificate of self-insurance, same as said obligation for an insurer would not arise but for the policy of insurance Thus, as the obligation to pay no-fault benefits herein arises from the agreement to provide coverage, this case is clearly distinguishable from both MVAIC v. Aetna Cas. and Aetna Life v. Nelson. XIV. Appellant's Reliance Upon First Department Case Law is Misguided: In regards to the First Department cases Appellant cites to support its position, namely M.N. Dental v. Authority and Richard Denise, M.D., P.C. v. New 47 York City Transit Authority, 96 A.D.3d 561 (App. Div., 1st Dept. 2012), Respondent respectfully submits that the First Department's rationale in these matters is simply not as comprehensive of that of the Second Department and fails to consider key issues raised by the Second Department and this Court that ultimately created this inconsistency in the law between these two departments. In M.N. Dental v. Authority, of which Denise, M.D., P.C. v. Authority simply relies upon in its entire decision, held on the issue of the applicable statute of limitations: It is well settled that "the No-Fault Law does not codify common-law principles; it creates new and independent statutory rights and obligations in order to provide a more efficient means for adjusting financial responsibilities arising · out of automobile accidents" (Aetna Life & Cas. Co. v. Nelson, 67 N.Y.2d 169, 175, 501 N.Y.S.2d 313, 492 N.E.2d 386 [1986] ). Since it is undisputed that there existed no contract between plaintiffs assignor and the Authority, the common carrier's obligation to provide no-fault benefits arises out of the no-fault statute. Therefore, the three-year statute of limitations as set forth in CPLR 214(2) is applicable here. The extent of the First Department's rationale on the matter is that because there is no literal contract of insurance between Authority and its passenger, and because Authority's obligation to provide no-fault benefits is solely created by no- fault law-the three-year statute of limitations pursuant to CPLR § 214(2) always applies to Appellant Authority. 48 Respondent respectfully submits that this line of reasoning in M.N. Dental v. Authority is incomplete because it fails to consider any of the applicable laws cited within the Second Department's case law cited throughout this brief, and misapplies the holding of Aetna Life v. Nelson. Specifically, M.N. Dental v. Authority never discusses the applicability of either YTL§ 370(3) or Ins. Law§ 5103 (a)(l) to Appellant, both of which apply to Authority- a self-insured business entity that insures its buses, which are utilized for public transport for hire. Moreover, M.N. Dental v. Authority does not addresses the specific wording of CPLR § 213(2), which states that actions based, "upon a contractual obligation or liability, express or implied," must be commenced within six years. In fact, the only reasoning the Appellate Division, First Department provides within M.N. Dental v. Authority to support its three-year statute of limitations theory is its citation to Aetna Life v. Nelson, and the notion that a contract of insurance is non- existent as it pertains to Authority. As was discussed previously, the Second department determined that Aetna Life v. Nelson was "misplaced" in the no-fault context when the obligation to provide no-fault benefits derives both from statute and contract. See Mandarino, 3 7 A.D.3d at 777-78. Specifically, the First Department never considered the Second Department's rationale that, "although the terms of the insurance policy may be mandated by various provisions of the Insurance Law, this does not alter the fact 49 that the dispute is fundamentally contractual in nature and not a creature of statute." Id. Nor did the First department consider Exum supra, which states that "an action against a self-insurer ... is, in our view, essentially contractual. The situation is as though the employer had written an insurance policy to itself, including the statutorily-required provision ... ". Exum, 18 NY3d at 328. Furthermore, the First Department failed to consider the aforementioned statutes, that state self-insurers and insurers are to be treated the same, and Court of Appeal~ cases, which state that "protection from a self-insurer 'is no less than the corresponding right under a policy issued by an insurer, "'as well as the specific language of CPLR § 213(2). See supra Shaw; Evans; Suero; Spring World Acupuncture. Respondent submits that because the First Department fails to properly consider or address the issues tackled by the Court of Appeals and Second Department regarding self-insurers and the applicable statute of limitations, the First Department case law cited in Appellant's Brief should have little bearing on this Court's decision on the matter. XV. Appellant's Attempt to Liken Itself to MVAIC is Misplaced: While Appellant cites to MVAIC v. Aetna Cas., Acupuncture Works, P.C. v. MVAIC, 27 Misc. 131(A) (App. Term, 2nd Dept. 2010), Shtarkman v. MVAIC, 20 Misc.3d 132 (A) (App. Term, 2nd Dept. 2008), Stracar Med. Svcs., P.C. v. 50 MVAIC, 10 Misc.3d 1056(A)(Civ. Ct., Kings, 2005), Boulevard Multispec Med. P.C., v. MV AIC, 19 Misc. 3d 138(A) (App. Term, 2nd Dept. 2008) and Universal Acupuncture Pain Services, P.C. v. MV AIC, 13 Misc 3d 1244(A) (Dist. Ct., Nassau 2006), none of these cases are relevant to the statute of limitations debate herein, as these matters apply specifically to MV AIC. Conversely, these cases do not reference either self-insured entities or VTL § 370, both currently at issue herein. The Authority and MV AIC are completely distinguishable entities. MV AIC only provides no-fault benefits when no coverage exists. MVAIC is the State of New York's non-profit, indemnification fund for accidents resulting from uninsured motor vehicles. See Insurance Law § 5202 ( d). MV AIC was statutorily created to provide coverage when the accident-vehicle that should have provided coverage is uninsured. See Insurance Law § 5203( c )("the corporation shall be obligated to provide the protection required by this article to a qualified person on account of a motor vehicle accident caused by owners or operators of motor vehicles occurring within the state"). MV AIC has never agreed to be responsible for any claims resulting from an accident and thus has never voluntarily assumed a duty to provide coverage to qualified persons. 51 The Authority, dissimilarly, is a business for hire, which self-insures the motor vehicles used in said business. The Authority, although statutorily created, is merely "authorizecf' to operate, control and self-insure its vehicles. Whereas MVAIC has never agreed to be responsible for any claims resulting from an accident, the Authority agreed to compensate claims resulting from accidents arising out of the use or operation of its motor vehicles in its self- insurance agreement with the City of New York. Unlike MVAIC, the Authority, like other insurers and self-insurers, has a duty to provide "covered persons" no-fault benefits as they specifically insured their vehicles for that exact purpose. Whereas MVAIC has no connection to claimants, insurers and self-insurers provide coverage to the persons they agreed to cover in the first instance when they issued a certificate of self-insurance and thus have assumed a duty to cover said persons in case of accident, through their insurance. Self-insurers contracted to provide this insurance to covered persons. It's as if self-insurers wrote a contract to themselves. Exum. As such, covered persons are entitled to no-fault benefits through the instrumentality of insurance. Qualified persons, on the other hand, are entitled to no-fault benefits exclusively through statute, not contract. MVAIC's liability arises only as a result of statutory enactment (§ 5105, §5221) and departmental regulations (11 NYCRR §§ 65.10, 65.15). MVAIC provides no assurance of coverage. 52 As MV AIC is not an insurer or self-insurer, the statute of limitations governing its obligations has absolutely no bearing on the question certified to this Honorable Court regarding the applicable statute of limitations for self-insurers. CONCLUSION: As this Honorable Court set forth in Hartnett v. New York City Transit Auth., "in the absence of a limitation period specifically governing the claim at issue, it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought" Hartnett v. New York City Transit Auth, 86 N.Y.2d 438 (1995). "Courts must look to the underlying claim and the "nature of the relief sought" to determine the applicable period of limitation" Vigilant Ins. Co. of Am. v Hous. Auth., 87 NY2d 36, 41 [1995]. The "relationship out of which the claim arises" and the "nature of the relief sought" is contractual. The Authority's agreement that it would provide coverage through its election to self-insure its vehicles and its engagement in the business of transporting passengers for hire through the use of said vehicles makes the Authority's obligation to provide coverage contractual in nature. As a result of said acts, the Authority assumed duties towards those using its transportation system (passengers), and those injured as a result of its vehicles' use and operation (pedestrians). While it is true that the No-Fault Law does not codify common-law 53 principles; it creates new and independent statutory rights and obligations ... " Aetna v. Nelson 67 NY2d at 175, this fact does not detract from the co-existing contractual obligation to provide no-fault benefits formed as a result of the Appellant's agreement to self-insure its vehicles. The statutory obligation pursuant to the no-fault statute co-exists with the contractual obligation for self-insurers in substantially the same manner the obligations co-exist for regular insurers. As statute and contract are both "but for" causes for liability to arise in this case, the longer of the two statute-of-limitations governing contractual obligations should be applied, per the principles of statutory construction set forth in Mandarino. Additionally, an application of a six-year statute of limitations would be more consistent with the history and intent behind no-fault and self-insurance legislation. To halve the time within which an injured bus passenger can bring a no-fault claim from six to three years would be the exact diminution of the protection to covered persons the Legislature intended to prevent. Clearly the Legislature did not intend for a passenger of an insured vehicle to have six years to bring a no-fault claim while a passenger of a self-insured vehicle only has three years to bring an identical claim, particularly when the Legislature expressly stated that insurers and self-insurers should be treated equally under the Insurance Law. 54 If the only reason self-insurance is available is to offer a cheaper, alternate form of establishing proof of financial responsibility, and companies, regardless if insured or self-insured, are obligated to provide the same benefits as required by statute, then there is no rational basis to differentiate time frames under which an injured person can bring a claim against an insurer or self-insurer. The no-fault provision, like the UM provision in Shaw, should be deemed included in the company's certificate of self-insurance, the same as it would be included in a policy of insurance. An injured person's rights should not be less because Appellant chose the cheaper and easier option to self-insure. Based on all of the foregoing, Plaintiff-Respondent respectfully submits that the Second Department, Appellate Division's Order affirming the Appellate Term's Order should be affirmed by this Honorable Court, in its entirety. Dated: Lake Success, New York July 13, 2017 Respectfully Submitted, TRICIA C. SMITH, ESQ. LAW OFFICE OF COHEN & JAFFE, LLP Attorneys for Plaintiff-Respondent CONTACT CHIROPRACTIC, P.C. 2001 Marcus Avenue - Suite W 295 Lake Success, New York (516) 358-6900 55 To: Agnes Neiger, Esq. Jones Jones LLC Attorneys for Defendant -Appellant New York City Transit Authority 5 Hanover Square, Suite 1001 New York, NY 10004 Tel: (212) 776-1808 56 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR 500.13(c) The foregoing brief was prepared on a computer. A proportionally spaced typeface was utilized, as follows: Name of typeface: Times New Roman Point Size: 14 Line Spacing: Double The total number of words within this Brief, inclusive of point headings and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance is 13,177. Dated: July 13, 2017 Lake Success, New York TRICIA C. SMITH, ESQ. 57 -