August 20, 2021

Silver Acupuncture, P.C. v GEICO Gen. Ins. Co. (2021 NY Slip Op 50833(U))

https://www.beynensonlaw.com/case-law/silver-acupuncture-p-c-v-geico-gen-ins-co-2021-ny-slip-op50833u/

Court: Appellate Term, Second Department
Decided: August 20, 2021
Citation: 2021 NY Slip Op 50833(U)
Posture: Other motion
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Defaults and vacatur

Cite as

Silver Acupuncture, P.C. v GEICO Gen. Ins. Co., 2021 NY Slip Op 50833(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's failure to file a notice of trial after a 90-day demand was not excused by its unexplained claim of law office failure. The Appellate Term, Second Department, reversed the order and granted the insurer's motion to dismiss for want of prosecution under CPLR 3216. The provider neither filed within the demanded period nor timely moved to vacate the demand or extend the period under CPLR 2004. Although it had served a notice of trial, the insurer had no obligation to file that notice or its own. The calendar clerk's affidavit gave no detailed, credible explanation of the failure to file and supplied no justifiable excuse under CPLR 2005; the court therefore did not reach whether the claim had merit.

Reported in New York Official Reports at Silver Acupuncture, P.C. v GEICO Gen. Ins. Co. (2021 NY Slip Op 50833(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Silver Acupuncture, P.C., as Assignee of Lamecca Anderson, Respondent,
against
GEICO General Ins. Co., Appellant.

Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 26, 2019. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

In August 2013, plaintiff commenced this action to recover assigned first-party no-fault benefits. Defendant interposed an answer in September 2013. In April 2017, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3). On July 12, 2018, defendant moved, pursuant to CPLR 3216, to dismiss the complaint for want of prosecution. In opposition to the motion, plaintiff’s counsel’s calendar clerk submitted an affidavit wherein he stated that a notice of trial had been served upon defendant but it had not been filed with the court due to law office failure and that plaintiff had a meritorious cause of action. By order entered June 26, 2019, the Civil Court denied defendant’s motion, stating “[d]efendant was free to file the Notice of Trial it received or to have filed its own Notice of Trial at any juncture in this action.”

Upon receiving a 90-day demand, a plaintiff must either comply with the demand by filing a notice of trial within 90 days thereafter (see CPLR 3216 [b] [3]; [c]), or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med. P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, since plaintiff failed to file a notice of trial more than 90 days after its receipt of the 90-day demand and had not moved prior thereto to vacate the demand or to extend the 90-day period, defendant properly moved to dismiss the complaint. The Civil Court denied defendant’s CPLR 3216 motion on the ground that defendant could have filed its own notice of trial. This was improper because, while any party may file a notice of trial (see CCA 1301; CPLR 3402 [a]), defendant had no obligation to do so.

The affidavit submitted by plaintiff in opposition to defendant’s motion did not provide a detailed and credible explanation of the law office failure that had caused the attorney’s failure to file the notice of trial (see Premier Surgical Servs. P.C. v Allstate Ins. Co., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Bayshore Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 141[A], 2017 NY Slip Op 51121[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]). Under the circumstances presented, we find that plaintiff’s claim of law office failure (see CPLR 2005) did not rise to the level of a justifiable excuse (see Sacramone v Tunick, 54 AD2d 897 [1976]; see also Housen v Boston Mkt. Corp., 166 AD3d 593 [2018]).

In view of the foregoing, it is unnecessary to consider whether plaintiff demonstrated the existence of a meritorious cause of action (see generally Levi v Levi, 46 AD3d 519 [2007]; Premier Surgical Servs, P.C., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U]).

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 20, 2021

Cited in this decision

A label shows how this decision treated the case it cites.

A.M. Med., P.C. v State Farm Mut. Ins. Co. (2008 NY Slip Op 28487) FollowedThe provider waived objections to defects in the insurer's 90-day demand and failed to justify its delay or show a meritorious claim.
Premier Surgical Servs., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50273(U)) FollowedThe insurer's conclusory claim of law office failure did not establish a reasonable excuse for its default in appearing or answering.
Bayshore Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51121(U)) FollowedThe insurer's explanation of law office failure during a file transfer showed attorney neglect and did not reasonably excuse its default.

Cited by

A label shows how the later decision treated this one.

Silver Acupuncture, P.C. v GEICO (Gov. Employees) (2021 NY Slip Op 51163(U)) FollowedThe insurer's motion to dismiss for failure to prosecute under CPLR 3216 was granted and affirmed on appeal.

Similar decisions

Silver Acupuncture, P.C. v GEICO Indem. Co. (2020 NY Slip Op 51134(U))The provider failed to give a credible law office failure excuse for filing its notice of trial after the 90-day demand period.
Midland Acupuncture, P.C. v GEICO Ins. Co. (2020 NY Slip Op 51509(U))The provider's law office failure affidavit did not justify its failure to respond to a 90-day demand under CPLR 3216.
Pro Health Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 50501(U))The provider's complaint was dismissed after it first sought to excuse noncompliance with a 90-day demand in sur-reply.
Faith Acupuncture, P.C. v Government Empls. Ins. Co. (2019 NY Slip Op 50829(U))The provider's unexplained law office failure did not justify its delay in filing a notice of trial after a 90-day demand.
Bronx Neurodiagnostics, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51820(U))The CPLR 3216 demand period runs from receipt, so the five additional days for mailing under CPLR 2103 (b) (2) do not apply.