December 5, 2014

Restoration Sports & Spine v Geico Ins. Co. (2014 NY Slip Op 51729(U))

https://www.beynensonlaw.com/case-law/restoration-sports-spine-v-geico-ins-co-2014-ny-slip-op51729u/

Court: Appellate Term, Second Department
Decided: December 5, 2014
Citation: 2014 NY Slip Op 51729(U) · 45 Misc 3d 134(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Defaults and vacatur

Cite as

Restoration Sports & Spine v Geico Ins. Co., 45 Misc 3d 134(A), 2014 NY Slip Op 51729(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 providers failed to demonstrate meritorious claims after allowing a CPLR 3216 90-day notice to expire without action. They neither filed a notice of trial nor moved to vacate the notice or extend the 90-day period. To avoid dismissal under CPLR 3216 (e), they were required to show both a justifiable excuse for delay and a meritorious cause of action. Counsel's conclusory assertion that bills had been submitted and remained unpaid after 30 days did not establish merit, and the action was not commenced upon a verified complaint under CPLR 105 (u). The Appellate Term, Second Department, reversed the order denying dismissal and granted the insurer's CPLR 3216 motion.

Reported in New York Official Reports at Restoration Sports & Spine v Geico Ins. Co. (2014 NY Slip Op 51729(U))

[*1]

Restoration Sports & Spine v Geico Ins. Co.

2014 NY Slip Op 51729(U) [45 Misc 3d 134(A)]

Decided on December 5, 2014

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 5, 2014

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

PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2012-1983 Q C

Restoration Sports & Spine as Assignee of MICHELLE MURDOCK, JOHN T. RIGNEY, M.D., as Assignee of BRUCE STEINOWITZ and DORA SCHIVELY, M.D., as Assignee of STEVEN ZEIKOWITZ, Respondents,
against
Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 25, 2012. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

Plaintiffs commenced this action to recover assigned first-party no-fault benefits in September 2008. On June 25, 2011, defendant served a 90-day notice pursuant to CPLR 3216 (b) (3). Plaintiffs did not file a notice of trial, move to vacate the 90-day notice, or move to extend the 90 days. In April 2012, defendant moved to dismiss the complaint pursuant to CPLR 3216. The Civil Court denied defendant’s motion.

Except under circumstances not presented here, a plaintiff seeking to avoid dismissal pursuant to CPLR 3216 is required to demonstrate both a justifiable excuse for its delay and a meritorious cause of action (see CPLR 3216 [e]; Belson v Dix Hills Air Conditioning, Inc., 119 AD3d 623 [2014]; Davis v Goodsell, 6 AD3d 382, 384 [2004]; Lama v Mohammad, 29 Misc 3d 68 [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, plaintiffs’ attorney’s conclusory statement that bills had been submitted to defendant and had not been paid within 30 days of their submission was insufficient to demonstrate the merit of plaintiffs’ case (see Sortino v Fisher, 20 AD2d 25 [1963]; Lama, 29 Misc 3d 68; Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d & 11th Jud Dists 2004]). Moreover, plaintiff did not commence this action upon a verified complaint (CPLR 105 [U]).

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

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decision Date: December 05, 2014

Similar decisions

Schottenstein Pain & Neuro, PLLC v GEICO Ins. Co. (2019 NY Slip Op 50085(U))The provider failed to justify its 37-day delay in responding to the insurer's 90-day demand under CPLR 3216.
Midwood Total Rehab, P.C. v GEICO Ins. Co. (2018 NY Slip Op 50763(U))The provider's two-month delay after a 90-day demand lacked a justifiable excuse or a showing of a meritorious claim.
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.
True-Align Chiropractic Care, P.C. v GEICO Ins. Co. (2020 NY Slip Op 51291(U))The provider failed to justify its delay or show a potentially meritorious claim after ignoring a CPLR 3216 90-day notice.
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.