Contact Chiropractic, P.C., as Assignee of Girtha Butler, Respondent,v.New York City Transit Authority, Appellant.BriefN.Y.March 21, 2018To be Argued by: AGNES NEIGER (Time Requested: 30 Minutes) Court of Appeals of the State of New York CONTACT CHIROPRACTIC, P.C. as assignee of GIRTHA BUTLER, Plaintiff-Respondent, – against – NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT JONES JONES LLC Attorneys for Defendant-Appellant 5 Hanover Square, Suite 1001 New York, New York 10004 Tel: (212) 776-1808 Fax: (212) 776-1809 aneiger@jonesjonesllc.com Dated: April 11, 2017 Appellate Division Docket No.: 2014-05446 Appellate Term docket No.: 2011-02967 QC Queens County Clerk’s Index No.: 03291/2007 APPELLATE INNOVATIONS (914) 948-2240 10794 Court of Appeals No. APL-2016-00111 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 #: 3291107 -against- New York City Transit Authority, CORPORATE DISCLOSURE STATEMENT OF NEW YORK CITY TRANSIT AUTHORITY Defendant-Appellant. SIRS: Pursuant to Section SOO.l(f) of the Rules of Practice for this Court, the undersigned counsel for Defendant-Appellant, New York City Transit Authority certifies that New York City Transit Authority is an affiliate of Metropolitan Transportation Authority, and that Manhattan and Bronx Surface Transit Operating Authority is a subsidiary of New York City Transit Authority. Dated: New York, New York April 3, 2017 1 Agnes Neiger, Esq. Jones Jones LLC Attorneys for Defendant New York City Transit Authority 5 Hanover Square, Suite 1001 New York, NY 10004 Tel: (212) 776-1808 Our File#: 1-1863 ii TABLE OF CONTENTS STATEMENT PURSUANT TO 22 NYCRR 500.1(F)……………………...i TABLE OF CONTENTS……………………………………………………ii TABLE OF AUTHORITIES…………………………………………….....iii QUESTIONS PRESENTED…….…………………………………………..1 STATEMENT OF FACTS………………………………………………….1 ARGUMENT I. Overview....………………………………….….………3 II. Application of the three-year statute of limitations to the instant action is supported by Court of Appeals authority………………………………………………...5 III. No-Fault coverage is statutory, not “contractual in nature”………………………………………………….9 IV. A comparison between the obligations of insurers and self-insurers under the No-Fault law is irrelevant to the issue of the appropriate statute of limitations……….....13 CONCLUSION…………………………………………………….………17 iii TABLE OF AUTHORITIES CASES Acupuncture Works, P.C. v. MVAIC, 27 Misc.3d 131(A) (App. Term, 2nd Dept. 2010) ......................................................................... 11 Aetna Life and Cas. Co. v. Nelson, 67 N.Y.2d 169 (1986) .................. 7, 9, 11 Boulevard Multispec Medical, P.C. v. MVAIC, 19 Misc.3d 138(A) (App. Term, 2nd Dept. 2008) ......................................................................... 11 Bulova Watch Co., Inc. v. Celotex Corp., 46 N.Y.2d 606 (1979) ........... 6, 16 ELRAC, Inc. v. Suero, 38 A.D.3d 544 (2nd Dept. 2007) .................... 9, 10, 11 Hartnett v. New York City Transit Authority, 86 N.Y.2d 438 (1995) ..................................................................... 6, 7, 10, 16 M.N. Dental Diagnostics, P.C. v. New York City Tr. Auth., 82 Ad3d 409 (1st Dept. 2011) ................................................................. 2, 4, 8 Mandarino v. Traveler’s Prop. Cas. Ins. Co., 37 A.D.3d 775 (2nd Dept. 2007) ...................................................................................... 15, 16 Matter of Manhattan and Bronx Surface Tr. Operating Auth. v. Evans, 95 A.D.2d 470 (2nd Dept. 1983) .................................................................... 14 MVAIC v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214 [1996] ...................... 9, 11 Richard Denise, M.D., P.C. v. New York City Trans. Auth., 96 AD3d 561 (1st Dept., 2012) ........................................................................8 Shtarkman v. MVAIC, 20 Misc.3d 132(A) (App. Term, 2nd Dept. 2008) ... 11 Stracar Med. Svcs., P.C. v. MVAIC, 10 Misc.3d 1056(A) (Civ. Ct., Kings 2005) ................................................................................... 11 iv Universal Acup. Pain Svcs., P.C. v. MVAIC, 13 Misc.3d 1244(A) (Dist. Ct., Nassau 2006) ................................................................................ 12 Van Rossum v. New York City Tr. Auth., 16 Misc.3d 1121(A) (Sup. Ct., Kings 2007) .................................................................................. 14 STATUTES 11 NYCRR 65 ..................................................................................................5 11 NYCRR 65-1 ........................................................................................... 13 11NYCRR 65-2 ............................................................................................ 13 Article 2 of the CPLR ............................................................................... 5, 10 CPLR § 201 ......................................................................................................5 CPLR § 213(2) .............................................................................................. 12 CPLR § 214(2) ........................................................................ 4, 5, 6, 7, 10, 11 CPLR § 214(4) .............................................................................................. 14 CPLR § 214(5) .............................................................................................. 14 Gen. Mun. Law § 50-i(1) .............................................................................. 14 Insurance Law § 5103 ................................................................... 1, 3, 4, 5, 13 Pub. Auth. Law § 1212(2) ............................................................................ 14 Pub. Auth. Law § 1215 ................................................................................. 14 Veh. and Traffic Law .......................................................................................4 Veh. and Traffic Law Art. 6 ......................................................................... 15 Veh. and Traffic Law § 321 (1) .................................................................... 14 v Veh. and Traffic Law § 321 (2) .................................................................... 15 1 QUESTIONS PRESENTED 1. 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 party which is self-insured is subject to a six-year statute of limitations, properly made? Proposed Answer: No. A cause of action against a self-insurer for payment of first-party no-fault benefits arises from an obligation created and imposed by statute and is therefore subject to a three-year statute of limitations. STATEMENT OF FACTS This is an action for recovery of No-Fault benefits pursuant to Insurance Law § 5103. The Plaintiff-Respondent herein seeks to recover $1,503.40, plus interest, attorney’s fees and filing fees, for services provided from January 11, 2001 through August 23, 2001. [51-66] The action was commenced on January 5, 2007. [51] The Complaint includes an allegation that the claims at issue were submitted to the Defendant-Appellant between March 14, 2001 and August 27, 2001, thereby establishing that the relevant causes of action accrued between April 19, 2001 and October 2, 2001, more than three years prior to the commencement of this action. [53] In March, 2007, the Defendant-Appellant served and filed a motion seeking dismissal based on the Plaintiff-Respondent’s failure to commence the action 2 within the three-year statute of limitations. [37-98] In an order dated December 4, 2007 the Civil Court, Queens County denied said motion. At that time, there was no appellate case law directly on point. In denying the Defendant-Appellant’s motion, the civil court relied on case law addressing the statute of limitations in uninsured motorist actions, which it found to be analogous to the issues in this action. [30-31] On March 1, 2011, the Appellate Division, First Department rendered a decision directly addressing the question of whether No-Fault actions against self- insured entities such as the New York City Transit Authority are subject to a three- year or a six-year statute of limitations. The Appellate Division held that such actions are subject to the three-year statute of limitations applicable to causes of action arising from liabilities created or imposed by statute. See M.N. Dental Diagnostics, P.C. v. New York City Tr. Auth., 82 Ad3d 409, 410 (1st Dept. 2011). Based on the above-referenced decision of the Appellate Division, First Department, the Defendant-Appellant moved on June 24, 2011 to renew its prior motion for dismissal. [22-131] In an order dated July 27, 2011, renewal was granted, but upon renewal the Civil Court adhered to its prior order denying the Defendant-Appellant’s motion to dismiss. [11] Defendant-Appellant appealed said order and, in an order dated December 3, 2013, the Appellate Term affirmed. [14- 3 18] Upon motion of Defendant-Appellant, the Appellate Term granted leave to appeal to the Appellate Division. [21] Thereafter, Defendant-Appellant appealed to the Appellate Division, Second Department. On January 20, 2016, the Appellate Division issued an order affirming the lower court’s order denying Defendant-Appellant’s motion for dismissal of the within complaint as time-barred. [4-5] Defendant-Appellant therefore moved for permission to appeal to this Court. In an order dated May 10, 2016, the Appellate Division granted permission to appeal to the Court of Appeals. [193-194] ARGUMENT OVERVIEW The instant action seeks reimbursement of No-Fault benefits for medical services provided by the Plaintiff-Respondent to its assignor. It is undisputed that the Defendant-Appellant, New York City Transit Authority is a self-insurer required under Insurance Law § 5103 to provide No-Fault coverage to eligible injured persons injured as a result of the use or operation of a Transit Authority vehicle. As a self-insurer, the New York City Transit Authority does not write insurance policies or otherwise enter into insurance contracts with its passengers. Thus, the Transit Authority’s obligation to provide No-Fault benefits to the 4 Plaintiff-Respondent’s assignor would not exist but for the provisions of the Vehicle and Traffic Law, Insurance Law § 5103, and the No-Fault Regulations. It is also undisputed that the causes of action at issue herein accrued more than three years, but fewer than six years, prior to the commencement of this lawsuit. Therefore, the sole issue presently before this Court is whether the instant action is governed by a three-year statute of limitations or a six-year statute of limitations. The Civil Court determined that the six-year statute of limitations applicable to actions arising from breach of contract governs the within action, as opposed to the three-year statute of limitations applicable to liabilities created or imposed by statute, as argued by Defendant-Appellant. The Appellate Term and Appellate Division both affirmed. The Civil Court, Appellate Term, and Appellate Division erred in applying a six-year statute of limitations. In doing so, said courts misapplied prior precedent and relied on inapplicable case law. As a result, their holdings are in direct conflict with the plain language of the relevant statutes, as well as precedent established by this Court and the Appellate Division, First Department. In contrast with the decision of the Appellate Division, Second Department, here being appealed, the Appellate Division, First Department, in M.N. Dental, properly held that the three-year statute of limitations set forth in CPLR § 214(2) is 5 applicable to No-Fault actions against self-insured entities. Unlike the decision of the Second Department, the First Department’s decision is consistent with this Court’s prior decisions addressing the nature of No-Fault law and the proper application of CPLR § 214(2). As such, the lower courts in this instance should have applied a three-year statute of limitations to the instant action and dismissed the complaint accordingly. APPLICATION OF THE THREE-YEAR STATUTE OF LIMITATIONS TO THE INSTANT ACTION IS SUPPORTED BY COURT OF APPEALS AUTHORITY Neither Insurance Law § 5103 nor the implementing No-Fault regulation, 11 NYCRR 65, sets 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, the question before this Court is the proper application of CPLR Art. 2 to the instant action. Although this Court has not directly addressed the issue of the statute of limitations applicable to No-Fault actions against self-insurers, this Court has established guidelines for the application of the three-year statute of limitations set forth in CPLR § 214(2) and has set precedent identifying No-Fault coverage as the type of obligation governed by said three-year limitation period. 6 In determining the statute of limitations applicable to a particular cause of action, “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 Authority, 86 N.Y.2d 438, 443-444 (1995). Similarly, in Bulova Watch Co., Inc. v. Celotex Corp., 46 N.Y.2d 606 (1979), this Court stated that in order to determine the applicable statute of limitations “we must look to the form of the remedy sought.” Here, it is clear that neither an express nor an implied contract existed between the Defendant-Appellant and the Plaintiff-Respondent or the Plaintiff- Respondent’s assignor. It is therefore clear that there is no “relationship” between the parties out of which the liability arises. Furthermore, the remedy sought is statutory rather than contractual. As the Transit Authority has not contracted with the Plaintiff-Respondent or its assignor for the provision of No-Fault insurance, or insurance of any kind, the remedy sought cannot be considered contractual. Rather, the Plaintiff-Respondent seeks to recover benefits which the Transit Authority is required to provide pursuant to the Insurance Law and No-Fault regulations. Thus, the “form of the remedy sought” is statutory, not contractual. In Hartnett v. New York City Transit Authority, supra, this Court established the standard for determining the applicability of the CPLR § 214(2) three-year limitation, holding that “[I]t is settled that in determining the 7 applicability of § (2), 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 City Transit Authority, supra. In Aetna Life and Cas. Co. v. Nelson, 67 N.Y.2d 169 (1986), this Court 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. The language used by this Court in Hartnett to identify the types of claims subject to the three-year limitation period set forth in CPLR §214(2), is virtually identical to that used by this Court in Aetna Life and Cas. Co. v. Nelson, supra, to describe the nature of No-Fault coverage. It is therefore clear that No-Fault coverage is fundamentally the type of obligation to which CPLR § 214(2) applies. Notably, the Appellate Division, First Department properly applied this Court’s prior holdings in determining that No-Fault actions against self-insurers are governed by the three-year statute of limitations set forth in CPLR § 214(2). Specifically, the First Department held: 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 8 efficient means for adjusting financial responsibilities arising out of automobile accidents” (Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175[1986]). Since it is undisputed that there existed no contract between plaintiff’s assignor and the NYCTA, the common carrier’s obligation to provide no-fault benefits arises out of the no-fault statute. Therefore, the three-year statute of limitations set forth in CPLR 214(2) is applicable here. M.N. Dental Diagnostics, 82 AD3d at 410 Based on the above reasoning, the Appellate Division in M.N. Dental Diagnostics, id, unanimously reversed the Order of the New York City Civil Court, Bronx County, which had denied defendant’s motion for dismissal, and ordered defendant’s motion granted and the complaint dismissed. Id. The First Department thereafter reiterated its position on the issue in Richard Denise, M.D., P.C. v. New York City Trans. Auth., 96 AD3d 561 (1st Dept., 2012), wherein it again applied the three-year statute of limitations to a No-Fault action against the New York City Transit Authority. Here, as in M.N. Dental, the plaintiff medical provider, proceeding as assignee of a No-Fault claimant, sought benefits from the New York City Transit Authority for medical services allegedly provided to its assignor and it is undisputed that there was no contractual relationship between the Defendant- Appellant and either the plaintiff or its assignor. It is similarly undisputed that the 9 within lawsuit was commenced more than three-years after accrual of the relevant cause of action. Based on the foregoing, Defendant-Appellant’s motion to dismiss should have been granted. NO-FAULT COVERAGE IS STATUTORY, NOT “CONTRACTUAL IN NATURE” The Civil Court’s denial of the Defendant-Appellant’s motion and the Appellate Division’s affirmance thereof are based on the reasoning that, though no contract existed between the Defendant-Appellant and the Plaintiff-Respondent or its assignor, No-Fault coverage is “arguably contractual in nature” [11] and therefore subject to the six-year limitation. However, this reasoning incorrectly relied on Appellate Division case law applicable to uninsured motorist coverage (see, ELRAC, Inc. v. Suero, 38 A.D.3d 544 [2nd Dept. 2007]), not No-Fault coverage, and is in direct conflict with this Court’s prior decisions, which clearly indicate that the obligation to provide No-Fault coverage is statutory in nature. (See, Aetna Life and Cas. Co. v. Nelson, supra; MVAIC v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214 [1996].) Initially, it should be noted that the lower court’s original order denying the Transit Authority’s motion, wherein the Court stated that “[n]either self-insured nor governmental status supports a shortened statute of limitations” [30], implicitly proceeds from the assumption that the default statute of limitations for No-Fault 10 actions is six years, and the within Defendant-Appellant’s motion essentially sought an exception to such limitations period. That assumption is incorrect. Neither the No-Fault law, nor the implementing regulations establish a statute of limitations specifically applicable to No-Fault actions. As such, the applicable statute of limitations is governed by Article 2 of the CPLR. As set forth above, the pertinent question with regard to the applicability of CPLR § 214(2) 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.” See, Hartnett v. New York City Transit Authority, supra. The lower court incorrectly relied upon ELRAC, Inc. v. Suero, supra, in determining that the Defendant-Appellant’s liability in the instant action is “contractual in nature.” ELRAC, Inc. v. Suero, supra, is inapplicable to the issue presently before the Court, as it addresses claims for Uninsured Motorist benefits, not claims filed under the No-Fault law. Moreover, application of the principles set forth in ELRAC, Inc. v. Suero to No-Fault actions is in conflict with case law established by the Court of Appeals. While Appellant-Defendant disagrees with the Second Department’s holding in ELRAC, Inc. v. Suero, this Court has not previously addressed the question of the statute of limitations applicable to Uninsured Motorist claims against self- 11 insured entities. As such, the Appellate Division’s determination that Uninsured Motorist coverage is effectively “contractual in nature” and therefore subject to a six-year limitation period stands as binding precedent in the Second Department. However, with respect to the No-Fault law, the Second Department’s holding that No-Fault actions are contractual in nature is decidedly inconsistent with relevant Court of Appeals precedent addressing the No-Fault law. As set forth above, this Court has very clearly established the No-Fault law as a system of “new and independent statutory rights and obligations.” Aetna Life and Cas. Co. v. Nelson, supra Therefore, application of the precedent established in the context of Uninsured Motorist law in Elrac, Inc. v. Suero, supra, to the instant No-Fault action, is improper and in direct conflict with the above-referenced Court of Appeals precedent. Notably, it is well-settled that actions for the recovery of No-Fault benefits from the Motor Vehicle Accident Indemnification Corporation (MVAIC) are subject to the three-year statute of limitations set forth in CPLR § 214(2). See, MVAIC v. Aetna Cas. & Sur. Co., supra, Acupuncture Works, P.C. v. MVAIC, 27 Misc.3d 131(A) (App. Term, 2nd Dept. 2010); Shtarkman v. MVAIC, 20 Misc.3d 132(A) (App. Term, 2nd Dept. 2008); Boulevard Multispec Medical, P.C. v. MVAIC, 19 Misc.3d 138(A) (App. Term, 2nd Dept. 2008); Stracar Med. Svcs., P.C. 12 v. MVAIC, 10 Misc.3d 1056(A) (Civ. Ct., Kings 2005); Universal Acup. Pain Svcs., P.C. v. MVAIC, 13 Misc.3d 1244(A) (Dist. Ct., Nassau 2006). It is therefore clear that the obligation to provide No-Fault coverage is not in and of itself “contractual in nature” as held by the Civil Court in its order denying Defendant-Appellant’s motion. Otherwise No-Fault actions against MVAIC would have to be subject to the six-year statute of limitations established by CPLR § 213(2). To the contrary, as indicated above, it is well-settled, based on the fact that there is no contractual relationship between MVAIC and its claimants and MVAIC’s obligation to provide No-Fault benefits would not exist but for statute, that No-Fault actions against MVAIC are subject to a three-year statute of limitations. The New York City Transit Authority likewise has no contractual relationship with claimants seeking No-Fault benefits and its obligation to provide No-Fault coverage to eligible injured persons is imposed solely by statute. As such, there is no appreciable difference between the Transit Authority and MVAIC with respect to the applicable statute of limitations in No-Fault actions, and the three- year statute of limitations clearly applies to the Transit Authority as it does to MVAIC. 13 A COMPARISON BETWEEN THE OBLIGATIONS OF INSURERS AND SELF-INSURERS UNDER THE NO-FAULT LAW IS IRRELEVANT TO THE ISSUE OF THE APPROPRIATE STATUTE OF LIMITATIONS The Appellate Term affirmed the lower court’s order denying Defendant- Appellant’s motion, but in doing so, relied on different reasoning from that of the lower court and the Appellate Division. Whereas the Civil Court found that No-Fault coverage is “contractual in nature” and therefore subject to a six-year statute of limitations, the Appellate Term reasoned that because insurers and self-insurers are equally liable for the provision of No-Fault coverage, they must be – or should be – subject to the same statute of limitations for disputes arising out of the failure to provide such benefits. [15-18] However, this reasoning fails to recognize the fact that the extent of a party’s liabilities and/or substantive obligations has no bearing on the applicable statute of limitations, which is a procedural tool designed to protect defendants from prosecution of stale claims. While the relevant law clearly establishes that a self-insurer such as the Defendant-Appellant bears a liability virtually identical to that of an insurer who provides coverage under a policy containing the mandatory No-Fault endorsement (see, Ins. Law § 5103, 11 NYCRR 65-1, and 11 NYCRR 65-2), there is no precedential support for the court’s determination that such equal liability necessarily results in an equal statute of limitations. 14 This principle is illustrated by the fact that, although Defendant-Appellant is 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 (Van Rossum v. New York City Tr. Auth., 16 Misc.3d 1121(A) (Sup. Ct., Kings 2007); Pub. Auth. Law § 1212[2]), as opposed to the three year limitation period generally applicable to such actions (CPLR § 214[5]). Similarly, though a municipality’s liability for personal injury and property damage arising from negligence is no different than that of any individual or corporation, such claims against municipalities are subject to a one year and ninety day limitation period pursuant to Gen. Mun. Law § 50-i(1) while identical claims against private citizens and corporations are subject to a three-year statute of limitations pursuant to CPLR § 214(4) and CPLR § 214(5). Thus, it is clear that the Appellate Term’s reliance on Matter of Manhattan and Bronx Surface Tr. Operating Auth. v. Evans, 95 A.D.2d 470 (2nd Dept. 1983), is misplaced, as the key question with respect to the applicable statute of limitations is not the extent of the defendant’s liability, but the source of the liability. In that regard, No-Fault insurers and self-insurers are distinctly different. In this instance, the Defendant-Appellant’s obligation to provide No-Fault coverage to the Plaintiff-Respondent’s assignor is imposed entirely by statute. Specifically, Vehicle and Traffic Law § 321 (1) and Public Authorities Law § 1215 15 exempt the Transit Authority from compliance with Article 6 of the Vehicle and Traffic Law, which mandates that all vehicle registrants maintain proof of financial security in the form of either insurance coverage or a bond. However, Vehicle and Traffic Law § 321 (2) provides that the Transit Authority is nevertheless “subject to the provisions of article fifty-one of the insurance law”. Thus, despite the fact that it has not contracted to provide insurance coverage, the Transit Authority is required, by operation of the above-referenced statutes, to provide No-Fault coverage to eligible injured persons. Thus, with respect No-Fault coverage, absent the provisions of Vehicle and Traffic Law § 321 (2), the within Defendant- Appellant would be nothing more than an uninsured vehicle owner. In other words, the Transit Authority’s obligation to provide No-Fault coverage would not exist but for the provisions of Vehicle and Traffic Law § 321 (2). This is distinctly different from insurers. Although the terms of the PIP endorsement may be statutorily mandated, an insurer is not statutorily obligated to provide coverage to any particular person or vehicle. Rather, that obligation arises from, and would not exist but for, the issuance of a contractual insurance policy. The Appellate Term’s reliance on Mandarino v. Traveler’s Prop. Cas. Ins. Co., 37 A.D.3d 775 (2nd Dept. 2007), is misplaced. Mandarino involved a No-Fault claim by an insured against an insurance company. As such, the defendant’s obligation to provide coverage in that case arose from an insurance contract. 16 Nevertheless, the insurer argued that a three-year statute of limitations should apply because the PIP endorsement of the policy was statutorily mandated. Thus, the court addressed the question of the applicable statute of limitations when an obligation is based upon both a contractual obligation and an obligation imposed by statute, finding that under such circumstances, the six-year limitations period applies because the statutory requirements were incorporated into a contract. The instant action is clearly distinguishable as it is undisputed that there is no contractual relationship between the parties. As set forth above, determination of the applicable statute of limitations is based on “the relationship out of which the claim arises and the relief sought” (Hartnett v. New York City Transit Authority, supra) and “the form of the remedy sought.” (Bulova Watch Co., Inc. v. Celotex Corp., supra). Here, unlike in Mandarino, supra, the “form of the remedy sought” is statutory, not contractual. The distinction between insurers and self-insurers with respect to the source of their liability can be illustrated by a simple hypothetical. Suppose the legislature were to repeal Article 51 of the Insurance Law tomorrow. Self-insurers’ obligation to provide No-Fault coverage would cease immediately and they would have no obligation to provide first-party benefits to anyone injured as a result of any future accident involving their self-insured vehicles. In contrast, insurers’ obligation to provide No-Fault coverage to their insureds would continue 17 until the existing insurance policy either expired or was terminated. As such, it is clear that self-insurers’ liability under the No-Fault law is imposed strictly by statute while insurers’ obligations are based in contract. Based on the foregoing, the lower Courts erred in denying Defendant- Appellant’s motion based on their erroneous determination that a six-year statute of limitations applies to the instant action. CONCLUSION Application of a three-year limitation period to the within action is consistent with prior precedent of this Court. In contrast, application of a six-year statute of limitations would be in direct conflict with the relevant statutes and well- settled principles established here. The motion court and the Appellate Division erred in applying a six-year statute of limitations based on their finding that the dispute is “contractual in nature” despite the undisputed fact that there is no contractual relationship between the parties. The Appellate Term similarly erred in affirming the lower court’s order based on the determination that because insurers and self-insurers are subject to the same liability under the No-Fault law they must also be subject to the same statute of limitations. Based on all of the foregoing, the order appealed from should be reversed and the instant action dismissed as time-barred. Dated: To: New York, New York April 3, 2017 Agnes Neiger, Esq. Jones Jones LLC Attorneys for New York City Transit Authority 5 Hanover Square, Suite 1001 New York, New York 10004 (212) 776-1808 File#: 1-1863 Law Office of Cohen & Jaffe LLP 2001 Marcus Avenue, Suite W295 Lake Success, NY 11042 Attention: Tricia Smith 18 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 670.10.3(f) 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, 728. Dated: New York, New York April 3, 2017 l'j Agnes Neiger, Es 19