December 3, 2008

A.M. Med., P.C. v State Farm Mut. Ins. Co. (2008 NY Slip Op 28487)

https://www.beynensonlaw.com/case-law/a-m-med-p-c-v-state-farm-mut-ins-co-2008-ny-slip-op-28487/

Court: Appellate Term, Second Department
Decided: December 3, 2008
Citation: 2008 NY Slip Op 28487 · 22 Misc 3d 43
Posture: Default or vacatur
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Defaults and vacatur

Cite as

A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 (App Term, 2d Dept 2008)

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 waived objections to defects in the insurer's 90-day demand and failed to justify its delay or show a meritorious claim. The insurer moved under CPLR 3216 to dismiss for failure to prosecute. The provider neither filed a note of issue or notice of trial within 90 days nor timely moved to vacate the demand or extend the period under CPLR 2004. The Appellate Term, Second Department, held that omissions of the court, venue and index number were defects of form under CPLR 2101 (c), waived by failure to return the demand within two days under CPLR 2101 (f). It affirmed the judgment dismissing the complaint.

Reported in New York Official Reports at A.M. Med., P.C. v State Farm Mut. Ins. Co. (2008 NY Slip Op 28487)

A.M. Med., P.C. v State Farm Mut. Ins. Co.

2008 NY Slip Op 28487 [22 Misc 3d 43]

Accepted for Miscellaneous Reports Publication

AT2

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

As corrected through Wednesday, February 25, 2009

[*1]

A.M. Medical, P.C., as Assignee of Arkadiy Yusufov, Appellant,
v
State Farm Mutual Insurance Co., Respondent.

Supreme Court, Appellate Term, Second Department, December 3, 2008

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Benjamin Sharav of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, Mineola (Mitchell S. Lustig of counsel), for respondent.

{**22 Misc 3d at 44} OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3216, to dismiss the complaint based upon plaintiff’s failure to prosecute the action. Plaintiff opposed the motion, contending that defendant’s 90-day demand was defective and therefore a nullity because it did not contain “a caption setting forth the name of the court, the venue . . . and the index number of the action” (CPLR 2101 [c]). The court below granted the motion to dismiss, and this appeal by plaintiff ensued.

Once a 90-day demand is received by a plaintiff, the plaintiff must either comply with the demand by filing a note of issue or a notice of trial within 90 days (CPLR 3216 [c]), or must 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]; Rubin v Baglio, 234 AD2d 534 [1996]). Since plaintiff failed to do either of these, it was required, in opposition to the motion to dismiss, to establish 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; Taylor v Gari, 287 AD2d 557 [2001]).

Plaintiff argues that the absence of a caption setting forth the name of the court, the venue and the index number in the 90-day demand rendered it a nullity, as it was not in compliance with CPLR 2101 (c). However, the demand set forth the name of the case, including the name of the assignor, as well as the date of the loss. Consequently, in our opinion, the omissions were merely defects in form to which plaintiff’s counsel could have objected by returning the demand to defendant within two days of its receipt, specifying the nature of the defect (CPLR 2101 [f]). Plaintiff’s failure to do so waived any objection to the defect (see Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]). In addition to its failure to offer any reasonable excuse{**22 Misc 3d at 45} for the delay, plaintiff also failed to show that it had a meritorious cause of action. Accordingly, the judgment dismissing the complaint is affirmed.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.

Cited by

A label shows how the later decision treated this one.

Silver Acupuncture, P.C. v GEICO Gen. Ins. Co. (2021 NY Slip Op 50833(U)) FollowedThe 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.
Midland Acupuncture, P.C. v GEICO Ins. Co. (2020 NY Slip Op 51509(U)) FollowedThe provider's law office failure affidavit did not justify its failure to respond to a 90-day demand under CPLR 3216.
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.
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.
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.
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.
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.
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.
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.

Similar decisions

A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50492(U))The provider failed to establish a business-records foundation and could not appeal discovery relief entered on its default.
Prompt Med. Supply, Inc. v State Farm Mut. Auto Ins. Co. (2019 NY Slip Op 50503(U))The insurer's default was excused based on possible withdrawal and the provider's assurance that no default proceedings would be commenced.
Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 29014)An omitted year in a mailing affidavit's jurat is a technical defect to be disregarded where no substantial right is prejudiced.
SZ Med., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50497(U))The provider failed to establish a reasonable excuse or a meritorious claim warranting vacatur of its dismissal for failure to proceed at trial.
V.S. Med. Servs., P.C. v Travelers Ins. Co. (2009 NY Slip Op 29226)The provider's conclusory claim that counsel failed to calendar the trial date did not reasonably excuse its default.