January 17, 2019

Schottenstein Pain & Neuro, PLLC v GEICO Ins. Co. (2019 NY Slip Op 50085(U))

https://www.beynensonlaw.com/case-law/schottenstein-pain-neuro-pllc-v-geico-ins-co-2019-ny-slip-op50085u/

Court: Appellate Term, Second Department
Decided: January 17, 2019
Citation: 2019 NY Slip Op 50085(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Defaults and vacatur

Cite as

Schottenstein Pain & Neuro, PLLC v GEICO Ins. Co., 2019 NY Slip Op 50085(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2019)

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 failed to justify its 37-day delay in responding to the insurer's 90-day demand under CPLR 3216. A provider receiving such a demand must file a notice of trial within 90 days under CPLR 3216 (c), or timely seek vacatur of the demand or an extension under CPLR 2004. Having done none of those things, the provider had to establish both a justifiable excuse and a meritorious cause of action in opposing dismissal. Counsel's bare assertion that the delay was neither willful nor contumacious and did not reflect abandonment supplied no justifiable excuse. The Appellate Term, Second Department, reversed the order and granted the insurer's motion to dismiss the complaint.

Reported in New York Official Reports at Schottenstein Pain & Neuro, PLLC v GEICO Ins. Co. (2019 NY Slip Op 50085(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Schottenstein Pain & Neuro, PLLC, as Assignee of Bamidele Adebisi, Respondent,
against
GEICO Insurance Company, Appellant.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Russell Friedman & Associates, LLP (Dara C. Goodman of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated April 25, 2017. 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 April 2011, plaintiff commenced this action, by an attorney-verified complaint, to recover assigned first-party no-fault benefits. Defendant interposed an answer in May 2011. Over five years later, in November 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received by plaintiff on November 22, 2016. On March 22, 2017, defendant moved to dismiss the complaint, pursuant to CPLR 3216, as defendant had not been served with a notice of trial. On March 29, 2017, plaintiff served defendant with a notice of trial. Plaintiff’s counsel’s affirmation in opposition to defendant’s motion stated that plaintiff’s “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action.” By order dated April 25, 2017, the District Court denied the motion.

Once a 90-day demand is served upon a plaintiff, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [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]). Since plaintiff failed to do any of these, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43). Here, “plaintiff’s bare statement in its attorney’s affirmation, after a [37-day] delay in responding to defendant’s 90-day notice, that its ‘delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action,’ failed to establish a justifiable excuse for its delay” (Midwood Total Rehab, P.C. v GEICO Ins. Co., 59 Misc 3d 146[A], 2018 NY Slip Op 50763[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

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

RUDERMAN, J.P., TOLBERT and GARGUILO, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 17, 2019

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)The provider waived objections to defects in the insurer's 90-day demand and failed to justify its delay or show a meritorious claim.
Midwood Total Rehab, P.C. v GEICO Ins. Co. (2018 NY Slip Op 50763(U)) FollowedThe provider's two-month delay after a 90-day demand lacked a justifiable excuse or a showing of a meritorious claim.

Cited by

Diagnostic Radiographic Imaging, P.C. v GEICO Ins. Co. (2019 NY Slip Op 51807(U))The provider's complaint was dismissed under CPLR 3216 because it offered no excuse for failing to comply with a 90-day demand.

Similar decisions

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.
Empire Med. & Rehabilitation, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51821(U))The provider's action was dismissed after it missed the CPLR 3216 demand deadline and failed to oppose the insurer's dismissal motion.
Restoration Sports & Spine v Geico Ins. Co. (2014 NY Slip Op 51729(U))The providers failed to demonstrate meritorious claims after allowing a CPLR 3216 90-day notice to expire without action.
South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Geico Ins. Co. (2015 NY Slip Op 50674(U))The provider's complaint was dismissed under CPLR 3216 because it ignored a 90-day demand and offered neither an excuse nor proof of merit.
Yin Yang Harmony Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50086(U))The insurer's motion to dismiss under CPLR 3216 for failure to serve a notice of trial after a 90-day demand was granted on appeal.