Nikolette Nrekaj (Associate-White Plains, NY) and Jacqueline Hattar (Partner-White Plains, NY) obtained a voluntary dismissal of a subrogation action venued in the New York State Supreme Court, Bronx County on behalf of a truck company and its driver.

Initially, the plaintiff/no-fault insurer sued Wilson Elser’s clients to recover approximately $225,000 in damages under an incorrect name and failed to serve its Summons and Complaint. Thereafter, recognizing that it had sued an incorrectly named entity, plaintiff untimely filed an Amended Summons and Amended Complaint, 23 days after the three-year statute of limitations had expired.

Nikolette and Jackie moved to dismiss the plaintiff/no-fault insurer’s subrogation action and all causes of action, arguing they were time-barred by the three-year statute of limitations pursuant to New York C.P.L.R. § 214(5) and New York Insurance Law § 5104(b).  The defense argued that plaintiff failed to commence the action within three years from the date of the subject accident.  In addition, Nikolette and Jackie argued that the plaintiff failed to specify whether certain amounts sought were for either Additional Personal Injury Protection (“APIP”) or Optional Basic Economic Loss (“OBEL”), which was fatal to plaintiff’s claims as it could not re-commence the action to recover these alleged damages.  While the motion to dismiss was pending, plaintiff agreed to discontinue all claims with prejudice against Wilson Elser’s clients.