Matter of Government Empls. Ins. Co. v. De Liriano

Matter of Government Empls. Ins. Co. v De Liriano 2025 NY Slip Op 30037(U) January 6, 2025 Supreme Court, New York County Docket Number: Index No. 654945/2023 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

INDEX NO. 654945/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/06/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 654945/2023 In the Matter of MOTION DATE 08/27/2024 GOVERNMENT EMPLOYEES INSURANCE COMPANY, MOTION SEQ. NO. 002 Petitioner, -v- DECISION + ORDER ON ROSA PONS DE LIRIANO, MOTION Respondent. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 15, 16, 17, 18, 19, 20, 21 were read on this motion to/for REARGUMENT/RECONSIDERATION .

In this proceeding pursuant to CPLR 7503 to stay arbitration of a claim for uninsured motorists benefits, the petitioner moves, by notice of motion incorrectly denominated as one for leave to reargue, for leave to renew the petition (CPLR 2221[e]), which had been denied in a decision, order, and judgment dated June 28, 2024. Although the respondent does not oppose the motion, the motion nonetheless is denied.

As the Appellate Division, First Department, has explained, “[a] motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing ‘that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision’” (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992], quoting Schneider v Solowey, 141 AD2d 813, 813 [2d Dept 1988]; see Matter of Setters v AI Props. & Devs. (USA) Corp., 139 AD3d 492, 4492 [1st Dept 2016]). The petitioner is not arguing here that the court overlooked or misapprehended any facts or law that it actually submitted in connection with the initial petition. Rather, it bases the current motion on purported facts that had not previously

654945/2023 GOVERNMENT EMPLOYEES INSURANCE COMPANY vs. DE LIRIANO, ROS PONS Page 1 of 4 Motion No. 002

As this court explained it in the June 28, 2024 order and judgment, pursuant to CPLR 7503(c), “an application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be so precluded.” “It is well settled that the time limitation prescribed by CPLR § 7503(c) is jurisdictional, and, absent special circumstances, courts have no jurisdiction to consider an untimely application” (Matter of Metropolitan Property & Cas. Ins. Co. v Coping, 179 AD2d 499, 500 [1st Dept 1992]).

“‘This statutory time period is to be strictly construed’” (Matter of GEICO Gen. Ins. Co. v Glazer, 173 AD3d 499, 499 [1st Dept 2019], quoting Gold Mills v Pleasure Sports, 85 AD2d 527, 528, [1st Dept 1981]). “‘[A] court’s lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action’” (Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008], quoting Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718, [1997]; see Editorial Photocolor Archives v Granger Collection, 61 NY2d 517, 523 [1984]; Lacks v Lacks, 41 NY2d 71, 75 [1976] [“It is blackletter law 654945/2023 GOVERNMENT EMPLOYEES INSURANCE COMPANY vs. DE LIRIANO, ROS PONS Page 2 of 4 Motion No. 002

The petitioner, however, has failed to provide a reasonable justification for failing to submit, with its initial application, the purportedly new evidence of the date of its receipt of the demand. Furthermore, although the petitioner alleged in the petition that it received the demand on September 21, 2023, the petition was verified only by the petitioner’s attorney, who did not claim to have personal knowledge of the date of receipt. Moreover, the document that it now submits simply provides a USPS tracking number and indicates a date on which the petitioner received correspondence pertaining to that tracking number. The document does not, by itself, establish that the enumerated tracking number pertains to the envelope containing the respondent’s demand for arbitration. Nor does the petitioner submit an affirmation or affidavit from an employee with knowledge that this tracking document pertains to the receipt of the demand for arbitration, or even an employee with knowledge of the petitioner’s mailroom protocol. Rather, it submits only an attorney’s affirmation which asserts, without more, that the petitioner received the respondent’s demand for arbitration on September 21, 2024. This is insufficient to support a motion for leave to renew. For these reasons, the petitioner’s motion must be denied.

In light of the foregoing, it is, 654945/2023 GOVERNMENT EMPLOYEES INSURANCE COMPANY vs. DE LIRIANO, ROS PONS Page 3 of 4 Motion No. 002

ORDERED that the motion is denied.

This constitutes the Decision and Order of the court.

1/6/2025 $SIG$ DATE JOHN J. KELLEY, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□ GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

654945/2023 GOVERNMENT EMPLOYEES INSURANCE COMPANY vs. DE LIRIANO, ROS PONS Page 4 of 4 Motion No. 002