Contact Chiropractic, P.C., as Assignee of Girtha Butler, Respondent,v.New York City Transit Authority, Appellant.BriefN.Y.March 21, 2018APL-2016-00111 To be Argued by: AGNES NEIGER (Time Requested: 15 Minutes) ~upr~m~ o.tnurl nf fir~ ~bd~ nf N~w fnrk Appdlaft IHuininn - ~trotti't lltpadmtnf CONTACT CHIROPRACTIC, P.C. as assignee of GIRTHA BUTLER, Docket No.: 2014-05446 Plaintiff-Respondent, -against- NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT -APPELLANT JONES JONES LLC Attorneys for Defendant-Appellant 5 Hanover Square, Suite 1001 New York, New York 10004 (212) 776-1808 Queens County Clerk's Index No.: 03291/2007 APPELLATE INNOVATIONS (91 4) 948·2240 ~ .. .., Printed on Recycled Paper 8758 TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................... ii ARGUMENT I. Overview ..................................... 1 II. Plaintiff-Respondent has failed to rebut or meaningfully distinguish the relevant Court of Appeals precedent cited by Defendant-Appellant. ......................... 1 III. Plaintiff-Respondent's reliance on Mandarino v. Traveler's is misplaced .......................... .4 IV. Plaintiff-appellant's reliance on VTL § 370 and Manhattan & Bronx Surface Operating Tr. Op. Auth. v. Evans is misplaced .............................. 6 V. Defendant-appellant's obligation to provide no-fault coverage is not in the nature of an implied contract. ... 1 0 VI. Contrary to Plaintiff-Respondent's arguments, the Appellate Division, First Department decisions on this issue should be given due consideration ............ 13 CONCLUSION ............................................... 15 TABLE OF AUTHORITIES CASES Aetna Life and Cas. Co. v. Nelson, 67 N.Y.2d 169 (1986) ........ 2, 3, 4, 5 Bulova Watch Co., Inc. v. Celotex Corp., 46 N.Y.2d 606 (1979) ......... 2 Duffy v. Horton Memorial Hospital, 66 N.Y.2d 473 (1985) ............. 9 Guercio v. Hertz Corp., 40 N.Y.2d 680, 684 (1976) ................... 11 Hartnett v. New York City Transit Authority, 86 N.Y.2d 438 (1995) ..................................... 2, 3, 4, 5 Laba v. Petrullo, 2003 N.Y. Slip Op. 50797U (App. Term, 2nd Dept. 2003) ..................................... 12 Lawrence Constr. Corp. v. State of New York, 293 N.Y. 634 (1944) ...... 9 Mandarino v. Traveler's Prop. Cas. Ins. Co., 37 A.D.3d 775 (2nd Dept. 2007) ............................... 4, 5, 6 Matter of Allstate Ins. Co. v. Shaw, 52 N.Y.2d 818 (1980) ............. 15 Matter ofDaimmler Chrysler Corp. v. Spitzer, 6 Misc.3d 228 (Sup. Ct. Albany 2004) ......................................... 14 Matter ofELRAC, Inc. v. Suero, 38 A.D.3d 544 (2nd Dept. 2007) ........ 15 Matter of Manhattan and Bronx Surface Transit Operating Auth. v. Evans, 95 A.D.2d 470 (2nd Dept. 1983) ....................... 6, 7, 8 M.N Dental Diagnostics, P.C. v. New York City Trans. Auth., 82 A.D.3d 409 (1st Dept. 2011) ................................... 14 M.N. Dental Diagnostics, P.C. v. New York City Trans. Auth., Index#: 38893/06 (N.Y. City Civ. Ct., Bronx 2008) .................. 14 ii Mountain View Coach Lines v. Storms, 102 A.D.2d 663 (2nd Dept. 1984) ............................................... 13 Murray v. Citv of New York, 195 A.D.2d 379 (1st Dept. 1993) .......... 10 MV AIC v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214 (1996) ......... 2, 3, 4, 5 Nassau Ins. Co. v. Guarascio, 82 A.D.2d 505 (2nd Dept. 1981) .......... 10 Richard Denise, M.D., P.C. v. New York Citv Trans. Auth., 96 AD3d 561 (1st Dept., 2012) ................................... 14 Richard Denise, M.D., P.C. v. New York Citv Trans. Auth., 25 Misc. 3d 13 (App. Term, 1st Dept. 2009) ......................... 15 Sheridan v. Tucker, 145 A.D.l45, 147 (41hDept. 1911) ................ 13 Spring World Acup., P.C. v. New York City Tr. Auth., 24 Misc.3d 39 (App. Term, 2nd Dept. 2009) ..................................... 15 VanRossum v. New York City Tr. Auth., 16 Misc.3d 1121(A) (Sup. Ct., Kings 2007) .......................... 8 STATUTES AND REGULATIONS 11 NYCRR65 ................................................. 1 CPLRArt. 2 ................................................. 1, 9 CPLR § 201. .................................................. 1 CPLR § 213(2) ............................................ 3, 5, 9 CPLR § 214(2) ..................................... 1, 2, 3, 4, 9, 10 CPLR § 214(5) ................................................ 8 Gen. Mun. Law§ 50-i(l). ....................................... 8 Ins. Law§ 5103 ........................................ 1, 6, 7, 13 111 Public Authorities Law § 1212(2) .................................. 8 Vehicle and Traffic Law § 321 (2) ............................... 6, 7 Vehicle and Traffic Law§ 370 ............................... 6, 7, 12 Vehicle and Traffic Law§ 370(1)(b) ............................... 7 SECONDARY SOURCES Barron's Law Dictionary, 106 (5th Ed. 2003) ........................ 13 iv ARGUMENT OVERVIEW Plaintiff-Respondent's brief continues to misrepresent the nature of the issue presently before this Court by framing its arguments in terms of a comparison between the relative rights and liabilities of insurers and self-insurers rather than addressing proper application of Article 2 of the CPLR to the within action, which is actually the relevant issue in this case. Plaintiff-Respondent has failed to rebut or meaningfully distinguish the Court of Appeals precedent cited by Defendant-Appellant, relies on irrelevant statutes and case law, misinterprets and/or misrepresents the significance of relevant case law, and improperly raises a new argument for the first time before this Court. In short, Plaintiff-Respondent has failed to rebut Defendant-Appellant's showing that the within action is subject to the three-year statute of limitations set forth in CPLR § 214(2). PLAINTIFF-RESPONDENT HAS FAILED TO REBUT OR MEANINGFULLY DISTINGUISH THE RELEVANT COURT OF APPEALS PRECEDENT CITED BY DEFENDANT-APPELLANT Neither Insurance Law § 5103 nor the implementing No-Fault regulation, 11 NYCRR 65, set forth a statute of limitations specifically applicable to actions for the recovery of overdue No-Fault benefits. Such actions are therefore subject to the time limitations set forth in Article 2 of the CPLR. See, CPLR § 201. Thus, as noted above, the question before this Court is the proper application of CPLR Art. 2 to the instant action. I As set forth in Defendant-Appellant's brief, the Court of Appeals has addressed this issue, holding that the applicable statute of limitations must be determined based on "the relationship out of which the claim arises and the relief sought." Hartnett v. New York Citv Transit Authority, 86 N.Y.2d 438, 443-444 (1995); see also, Bulova Watch Co., Inc. v. Celotex Corp., 46 N.Y.2d 606 (1979). With respect to CPLR § 214(2) specifically, the Court of Appeals held that "the pertinent inquiry is whether the statute creates a liability 'for wrongs not recognized in the common or decisional law,' and which would not exist but for the statute. (Citations omitted)" Hartnett v. New York Citv Transit Authority, supra. In Aetna Life and Cas. Co. v. Nelson, 67 N.Y.2d 169 (1986), the Court of Appeals stated 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." Id. at 175; see also, MV AIC v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214 (1996). Plaintiff-Respondent's attempts to distinguish the above-cited precedent from the facts of the instant action fail, as the distinctions Plaintiff-Respondent points to are irrelevant. With respect to Hartnett v. New York City Transit Authority, supra, and Bulova Watch Co., Inc. v. Celotex Corp., supra, Plaintiff-Respondent argues that the cases are distinguishable from the instant action because they do not address a claim for No-Fault benefits. Defendant-Appellant readily admits that the cases are factually 2 distinguishable in that regard. However, the cases are nevertheless relevant insofar as they establish the standard for the application of CPLR § 214(2), which is the central issue in this action. Similarly, Plaintiff-Respondent attempts to distinguish Aetna Life and Cas. Co. v. Nelson, supra, and MV AIC v. Aetna Cas. & Sur. Co., supra, because those cases involve disputes between insurers and not a claimant or assignee's action to recover No-Fault benefits from an insurer or self-insurer. However, Defendant-Respondent has never claimed that said cases were directly on point. Rather, they are cited to establish that the failure to pay No-Fault benefits to an eligible injured person or his/her assignee is a "wrong not recognized in the common or decisional law" and is therefore subject to the three-year limitation period established by CPLR § 214(2) pursuant to the standard set forth in Hartnett v. New Y orlc Citv Transit Authority, supra. Although Aetna Life and Cas. Co. v. Nelson, supra, and MV AIC v. Aetna Cas. & Sur. Co., supra, are factually distinguishable from the instant action, their discussion of the obligation to provide No-Fault coverage as a statutory obligation is both valid and relevant to the present issue. The Court of Appeals' statement that "the No-Fault Law does not codifY common-law principles; it creates new and independent statutory rights and obligations ... " (Aetna Life and Cas. Co. v. Nelson, supra) refers to the No-Fault law in general and is therefore applicable to the within cause of action. As the Court of Appeals has established that actions arising from a liability created by statute and 3 unknown in the common law are subject to CPLR § 214(2) (Hartnett v. New York City Transit Authority, supra) and that the No-Fault law creates statutory rights and obligations independent of common-law principles (Aetna Life and Cas. Co. v. Nelson, supra), it necessarily follows that this action is subject to the three-year statute of limitations pursuant to CPLR § 214(2), as Defendant-Appellant's obligation to provide coverage is statutorily mandated and there is no contract between the parties. PLAINTIFF -RESPONDENT'S RELIANCE ON MANDARINO v. TRAVELER'S IS MISPLACED Plaintiff cites Mandarino v. Traveler's Prop. Cas. Ins. Co., 37 A.D.3d 775 (2"d Dept. 2007) in an attempt to distinguish the instant action from Aetna Life and Cas. Co. v. Nelson, supra, and MV AIC v. Aetna Cas. & Sur. Co., supra. Specifically, Plaintiff- Respondent claims that this Court distinguished the Court of Appeals precedent relied upon by Defendant-Appellant based on the fact that those cases involved disputes between insurers as opposed to claims by an injured party or his/her assignee for reimbursement of No-Fault benefits. In actuality, this Court, in Mandarino v. Traveler's, supra, distinguished that case from the above-referenced Court of Appeals precedent based on the existence of a contractual relationship between Traveler's and its insured. As this Court stated, Mandarino v. Traveler's involved "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. [Emphasis added]" Mandarino v. Traveler's, supra at 777-778. In fact, the Court specifically indicated that its 4 determination that a six-year statute of limitations was based "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." Mandarino v. Traveler's, supra at 776. Thus, the Court found that although the terms of the insurance policy were mandated by the Insurance Law, the insurer's obligation to provide benefits was contractual and therefore subject to a six-year limitation period per CPLR § 213(2). Here, as in Aetna Life and Cas. Co. v. Nelson, supra, and MV AIC v. Aetna Cas. & Sur. Co., supra, there is no contractual relationship between the parties. As such, the alleged factual distinctions between said cases and the within action are irrelevant to the legal issue presently before this Court. This Court's holding in Mandarino v. Traveler's, supra, is not in conflict with the Court of Appeals' decisions cited by Defendant. In fact, it is in accord with Hartnett v. New York Citv Transit Authority, supra, which specifically states that in determining the statute of limitations, it is necessary to look to "the relationship out of which the claim arises." !d. In Mandarino v. Traveler's, supra, the relationship between the defendant insurer and the plaintiff, an assignee of the defendant's insured, was contractual, despite the fact that certain terms of the contract were mandated by statute. Therefore, the insurer's obligation to provide benefits to the plaintiff was in the nature of a breach of contract and the Court properly applied the six-year limitation period pursuant to CPLR § 213(2). In contrast, there is no such contractual relationship between the parties to the 5 instant action. Defendant-Appellant's obligation to provide No-Fault coverage anses solely from the provisions of Vehicle and Traffic Law § 321 (2) and Insurance Law § 5103 and would not exist but for those statutes. Application of the three-year statute of limitations to the instant action is therefore proper pursuant to the above-cited Court of Appeals precedent and would not conflict with this Court's prior determination in Mandarino v. Traveler's, supra. PLAINTIFF-APPELLANT'S RELIANCE ON VTL § 370 AND MANHATTAN & BRONX SURFACE OPERATING TR. OP. AUTH. v. EVANS IS MISPLACED In its brief, Plaintiff-Respondent argues extensively that actions against insurers and self-insurers should be subject to the same statute of limitations because they're substantive liabilities under the Insurance Law are the same. This argument has been addressed at length in Defendant-Appellant's brief. However, certain elements of the arguments raised in Plaintiff-Respondent's brief should be addressed. Plaintiff points to the fact that the Appellate Term's decision in the instant action was based on its interpretation of VTL § 3 70, Ins. Law § 5103, and Manhattan & Bronx Surface Operating Tr. Op. Auth. v. Evans, 95 A.D.2d 470 (2nd Dept. 1983) and argues that Defendant-Appellant cannot prevail on appeal without specifically addressing the authority relied upon by the Appellate Term. However, Defendant-Appellant's brief did address the rationale in support of which the above authority was cited, even if it didn't specifically address the statutes and case law cited by the Appellate Term in detail. 6 More importantly, it must be noted that the authority upon which the Appellate Term and Plaintiff-Respondent base their position is entirely irrelevant to the issue before this Court. VTL § 370 has nothing whatsoever to do with the obligation to provide No-Fault coverage. It merely requires common carriers to maintain proof of financial security, either in the form of an insurance policy or indemnity bonds, and establishes the minimum amount of financial security required for each vehicle registered to the common carrier. Notably, although VTL § 370(1)(b) specifically requires any such bond or policy of insurance to provide for uninsured motorist coverage, it does not establish any requirement for the provision of No-Fault coverage. VTL § 370 is therefore entirely irrelevant to the within No-Fault action. Notwithstanding the foregoing, Defendant-Appellant does not dispute that it IS statutorily required, pursuant to VTL § 321(2) and Ins. Law§ 5103, to provide No-Fault coverage to eligible injured persons whose injuries result from the use or operations of its vehicles. The Appellate Term and Plaintiff-Respondent rely on Manhattan & Bronx Surface Operating Tr. Op. Auth. v. Evans, supra, in support of the proposition that "the intent of the legislature was not to impose a lesser duty on a public carrier which posts a bond than the duty imposed upon an owner who purchases insurance." [R. 11] 7 However, the fact that insurers and self-insurers are subject to equal liability under the No-Fault law does not lead to the conclusion that actions against them are subject to the same statute of limitations. In fact, although liable to the same extent as any other tortfeasor for personal injuries arising from its negligence, an action against Defendant- Appellant for personal injuries is subject to a one year and ninety day statute of limitations (VanRossum v. New York City Tr. Auth., 16 Misc.3d 1121(A) (Sup. Ct., Kings 2007); Pub. Auth. Law§ 1212[21), as opposed to the three year limitation period generally applicable to such actions (CPLR § 214[51). Similarly, a municipality is subject to a shorter statute of limitations for personal injury than any individual or corporate defendant even though the extent of its liability is identical to theirs. See, Gen. Mun. Law § 50-i(l). Thus, contrary to Plaintiff's position, it does not follow that equal liability under the No-Fault law necessarily requires the application of the same statute of limitations to insurers and self-insurers. Furthermore, the application of a three-year statute of limitations to the instant action does not conflict with this Court's finding in Manhattan & Bronx Surface Operating Tr. Op. Auth. v. Evans, supra, that the legislature did not intend to impose a lesser duty on a self-insured public carrier, as it would not diminish the claimant's substantive right to obtain No-Fault benefits from the defendant. 8 In any event, the relevant question here is not the legislative intent behind the Vehicle and Traffic Law or even the Insurance Law but the legislative intent behind CPLRArt. 2. It is well-settled that "the primary purpose of a limitations period is fairness to a defendant." Duffy v. Horton Memorial Hospital, 66 N.Y.2d 473 (1985). CPLR § 213(2) and CPLR § 214(2) explicitly establish separate limitations periods for action arising from breach of contract and those based on a liability imposed by statute. It is therefore clear that the legislature determined that a shorter limitations period with respect to liabilities imposed by statute as opposed to those arising from breach of contract is necessary in order to preserve fairness to defendants in such actions who, unlike parties to a contract, cannot choose with whom to contract, cannot negotiate the terms of the contract, and do not receive compensation for assuming the liability in question. Finally, "[a] statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise in the course of its administration." Lawrence Constr. Corp. v. State of New York, 293 N.Y. 634 (1944). Thus, even if this Court is of the opinion that it would be more fair, or simply more convenient, to apply the same statute of limitations period to all No-Fault actions regardless of whether they arise from the breach of an insurance policy or from a statutory obligation to provide coverage, the Court is constrained to apply the relevant 9 statutes as they were written. In this case, that requires the application of a three-year limitations period to the instant action pursuant to CPLR § 214(2). DEFENDANT-APPELLANT'S OBLIGATION TO PROVIDE NO-FAULT COVERAGE IS NOT IN THE NATURE OF AN IMPLIED CONTRACT Plaintiff-Respondent further argues that the within action should be subject to the six-year statute of limitations because Defendant-Appellant's obligation to provide No- Fault coverage is in the nature of an implied contract. As this issue is improperly raised for the first time on the appeal before this Court, the argument should not be considered. Murray v. City of New York, 195 A.D.2d 379 (1st Dept. 1993). Even if the Court were to consider Plaintiff-Respondent's arguments with respect to the existence of an implied contract, said arguments are entirely without merit. Plaintiff-Appellant argues that "since every vehicle under Appellant's umbrella is self- insured, there is a de facto contract of insurance implied between NYCTA and every individual riding these vehicles." [Plaintiff-Respondent's Brief, P. 22] This Court has held that '"Insurance' exists when a contractual relationship between insurer and insured shifts the risk of loss of the insured to the insurer. 'Self- insurance' on the other hand is the assumption of risk of loss by one having an insurable interest [citation omitted]." Nassau Ins. Co. v. Guarascio, 82 A.D.2d 505 (2nd Dept. 1981). 10 As stated by the Court of Appeals, "Generally, self-insurance is no insurance at all. Rather, self-insurance, in this context, is a convenient shorthand for describing the manner in which a class of vehicle owners may comply with the requirements of the Motor Vehicle Financial Security Act." Guercio v. Hertz Corp., 40 N.Y.2d 680, 684 (1976). The Court of Appeals went on to explain that "By undertaking to assure payment of judgments, the owner does not become an 'insurer' of anything other than his own ability to pay for damages for which he is legally responsible. [citations omitted.] In sum, self-insurance is not insurance but an assurance -- an assurance that judgments will be paid." !d. In Guercio v. Hertz, the plaintiff sought to compel Hertz, as the self-insurer of the vehicle in which she was injured, to pay a judgment she obtained against Raymond Frost, the driver of said vehicle. Guercio had rented a vehicle from Hertz and allowed Frost to drive the vehicle. Guercio was injured in an accident resulting from Frost's negligence and obtained the aforementioned judgment against him. The Court stated that "Since plaintiff only obtained a judgment against Frost and not against Hertz, Hertz would not be liable unless it promised to provide more than the bare 'self-insurance' required by statute." !d. at 685. The Court ultimately determined that Hertz did promise such additional coverage in its rental agreement and was therefore obligated to pay the judgment against Frost. However, the Court's determination that mere "self-insurance" would not have been sufficient to impose such a requirement on Hertz undermines 11 Plaintiff-Respondent's argument in the instant action. If an implied contract was created by the fact that self-insured common carriers are subject to the liability imposed by VTL § 370 to the same extent as insurers Hertz would have been obligated, by virtue of said implied contract, to pay the judgment against Frost without the necessity of any promise of additional coverage in its rental agreement. The Court of Appeals, however, clearly established that Hertz's status as a self-insurer was, in and of itself, insufficient to impose such liability on Hertz. Similarly, in Laba v. Petmllo, 2003 N.Y. Slip Op. 50797U (App. Term, 2"d Dept. 2003), the plaintiff was a passenger in an uninsured taxi and was injured as the result of an accident in which said taxi was struck in the rear. The Appellate Term held: "Inasmuch as neither the 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." Id. The clear implication is that the obligation to provide No~ Fault coverage is not inherent in the common carrier-passenger relationship. If it were, the plaintiff in Laba could have obtained No-Fault benefits from the owner of the taxi in spite of the lack of an insurance policy. Indeed, the theory that an individual's or corporation's obligation to abide by the law could be contractually imposed is contrary to the legal principles governing both statutes and contract. 12 A statute is, after all binding in its own right. The mere expectation that a party will comply with its statutory obligations does not convert such obligations into contractual duties. A contract is defined as: A promise or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty [citation omitted.] The essentials of a valid contract are 'parties competent to contract, a proper subject- matter, consideration, mutuality of agreement, and mutuality of obligation.' [citation omitted.] Barron's Law Dictionarv, 106 (51h Ed. 2003). By definition then, it is impossible to implicitly contract for the performance of an action which was already statutorily mandated, as the party bargaining for such performance would in fact be receiving no consideration. In short, Defendant-Appellant's obligation to provide No-Fault coverage is expressly imposed by Ins. Law § 5103 and is not the product of an implied contract between Defendant-Appellant and its passengers. CONTRARY TO PLAINTIFF-RESPONDENT'S ARGUMENTS, THE APPELLATE DIVISION, FIRST DEPARTMENT DECISIONS ON THIS ISSUE SHOULD BE GIVEN DUE CONSIDERATION As indicated in Defendant-Appellant's brief, this Court has previously held that it "should accept the decisions of sister departments as persuasive." Mountain View Coach Lines v Storms, 102 A.D.2d 663 (2"d Dept., 1984); see also, Sheridan v. Tucker, 145 13 A.D.145, 147 (4th Dept. 1911); Matter ofDaimmler Chrysler Corp. v. Spitzer, 6 Misc.3d 228 (Sup. Ct. Albany 2004). In this instance, the Appellate Division, First Department is the only court at the Appellate Division level, or higher, to address the exact issue presently before this Court and its determination is based on careful consideration and application of precedent established by the Court of Appeals. Nevertheless, Plaintiff-Respondent argues that this Court should not consider the First Department's decisions in M.N. Dental Diagnostics, P.C. v. New York Citv Trans. Auth., 82 AD3d 409 (1st Dept. 2011) and Richard Denise, M.D., P.C. v. New York City Trans. Auth., 96 AD3d 561 (1st Dept., 2012), alleging that the First Department did not consider the arguments raised in this appeal. Plaintiff- Appellant's position in that respect is simply incorrect. First, contrary to Plaintiffs arguments, the First Department's decisions are entitled to due consideration, regardless of the specific arguments raised by the parties in those cases, based on the fact that they decide the exact question of law presented by the instant appeal. Moreover, although not discussed at length by the First Department in the above- referenced decisions, the same issues raised by Plaintiff-Respondent in the instant action were raised before the lower courts in M.N. Dental Diagnostics, P.C. v. New York City Trans. Auth., supra, and Richard Denise, M.D., P.C. v. New York City Trans. Auth., supra. Specifically, the lower court's unpublished decision in M.N. Dental Diagnostics, 14 P.C. v. New York City Trans. Auth., Index#: 38893/06 (N.Y. City Civ. Ct., Bronx 2008) the Civil Court based its decision on the existence of an "implied contract to provide no- fault coverage" and in Richard Denise, M.D., P.C. v. New York City Trans. Auth., 25 Misc. 3d 13 (App. Term, 1st Dept. 2009) the Appellate Term, like the within Plaintiff- Respondent and lower courts relied on the concept that the equal liability of insurers and self-insurers under the No-Fault law required application of the same statute of limitations to No-Fault actions against both classes of defendant. In fact, the Appellate Term cited much of the same authority relied upon by Plaintiff-Respondent here, including Matter of Allstate Ins. Co. v. Shaw, 52 N.Y.2d 818 (1980), Matter ofELRAC v. Suero, 38 A.D.3d 544 (2007), and Spring World Acup., P.C. v. New York City Tr. Auth., 24 Misc.3d 39 (App. Term, 2nd Dept. 2009). Therefore, although the First Department didn't address them at length, in reversing the lower court's orders in the above-referenced matters, the Appellate Division necessarily considered and rejected the arguments espoused by Plaintiff-Respondent in this action. CONCLUSION Based on all of the foregoing, as well as the arguments set forth in Defendant- Appellant's brief, the order appealed from must be reversed and the instant action dismissed as time-barred. 15 Dated: To: New York, New York November4, 2014 Agnes Neiger, Esq. Jones Jones LLC Attorneys for New York City Transit Authority 5 Hanover Square, Suite 1001 NewYork,NewYork 10004 (212) 776-1808 File#: 1-1863 Law Office of Cohen & Jaffe LLP 2001 Marcus Avenue, Suite W295 Lake Success, NY 11042 16 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 670.10.3(1) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 3,645. Dated: New York, New York November4, 2014 17