April 23, 2021

S & G Med. Servs., P.C. v Allstate Ins. Co. (2021 NY Slip Op 50359(U))

https://www.beynensonlaw.com/case-law/s-g-med-servs-p-c-v-allstate-ins-co-2021-ny-slip-op-50359u/

Court: Appellate Term, Second Department
Decided: April 23, 2021
Citation: 2021 NY Slip Op 50359(U)
Posture: Other motion
Outcome: Provider prevailed
Issues: Defaults and vacatur

Cite as

S & G Med. Servs., P.C. v Allstate Ins. Co., 2021 NY Slip Op 50359(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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Summary

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

The insurer's motion to dismiss for failure to prosecute was premature under CPLR 3216 (b) (2). After vacating a default judgment, the Civil Court deemed the insurer's answer served. The insurer later served a 90-day demand to file a notice of trial and moved to dismiss before one year had elapsed from the date the answer was deemed served. That timing failed a statutory precondition to dismissal. The Appellate Term, Second Department, reversed the order granting dismissal and denied the insurer's motion, reinstating the provider's action for assigned no-fault benefits.

Reported in New York Official Reports at S & G Med. Servs., P.C. v Allstate Ins. Co. (2021 NY Slip Op 50359(U))

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

S & G Medical Services, P.C., as Assignee of Nicolette Harvey, Appellant,
against
Allstate Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Peter C. Merani, P.C. (Adam J. Waknine and Samuel Kamara of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 23, 2019. The order granted defendant’s motion to dismiss the complaint.

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

Plaintiff commenced this action in 2015 to recover assigned first-party no-fault benefits. Defendant failed to appear in the action, and, on February 8, 2016, a default judgment was entered upon plaintiff’s motion. Defendant thereafter served an answer by mail and moved to dismiss the complaint for lack of jurisdiction, or, in the alternative, to vacate the default judgment, extend defendant’s time to answer and compel plaintiff to accept the answer. Plaintiff opposed the motion. By order entered July 28, 2017, the Civil Court (Andrew Borrok, J.) granted defendant’s motion to the extent of vacating the default judgment, stating that the “answer served by defendant is deemed served and received by plaintiff.” On November 2, 2017, defendant served plaintiff with a 90-day demand to file a notice of trial, which demand plaintiff rejected as premature. On February 1, 2018, defendant moved, pursuant to CPLR 3216, to dismiss the complaint on the ground that plaintiff had failed to prosecute the action. Plaintiff opposed and now appeals from an order of the Civil Court entered January 23, 2019 granting defendant’s motion.

A court may dismiss an action for failure to prosecute under CPLR 3216 only if the statutory preconditions to dismissal are met (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Alli v Baijnath, 101 AD3d 771 [2012]; Neary v Tower Ins., 94 AD3d 723 [2012]). In the instant case, as defendant moved to dismiss the complaint in February 2018, before the expiration of one year after the Civil Court had deemed defendant’s answer served as [*2]of July 28, 2017, defendant failed to satisfy a statutory precondition to dismissal of the complaint (see CPLR 3216 [b] [2]; Madigan v Crompton, 45 AD3d 650 [2007]). Consequently, there was no basis for the Civil Court to grant defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 23, 2021

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