July 12, 2019

Faith Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 51173(U))

https://www.beynensonlaw.com/case-law/faith-acupuncture-p-c-v-geico-ins-2019-ny-slip-op-51173u/

Court: Appellate Term, Second Department
Decided: July 12, 2019
Citation: 2019 NY Slip Op 51173(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Defaults and vacatur

Cite as

Faith Acupuncture, P.C. v GEICO Ins., 2019 NY Slip Op 51173(U) (App Term, 2d Dept, 2d, 11th & 13th 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 insurer's CPLR 3216 dismissal was reinstated because the provider's law office failure claim was not a justifiable excuse. The Appellate Term, Second Department, modified the reargument order to adhere to dismissal for failure to comply with a 90-day notice and otherwise affirmed. It relied on Faith Acupuncture, P.C. v Government Empls. Ins. Co. and Pro Health Acupuncture, P.C. v GEICO Ins.

Reported in New York Official Reports at Faith Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 51173(U))

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

Faith Acupuncture, P.C., as Assignee of Igor Shkundin, Respondent,
against
GEICO Insurance, Appellant.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Zachary Albright Whiting of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered November 1, 2017. The order granted plaintiff’s motion for leave to reargue its opposition to defendant’s prior motion to dismiss the complaint pursuant to CPLR 3216, which prior motion had been granted in an order of that court entered May 9, 2017, and, upon reargument, vacated the order entered May 9, 2017 and denied defendant’s motion.

ORDERED that the order entered November 1, 2017 is modified by providing that, upon reargument, the order entered May 9, 2017 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is adhered to; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3216 based upon plaintiff’s failure to comply with a 90-day notice, which motion was granted by order of the Civil Court entered May 9, 2017. Plaintiff subsequently moved for leave to reargue its opposition to that motion, and, upon reargument, to deny defendant’s motion. Defendant appeals from an order of the Civil Court entered November 1, 2017 granting plaintiff’s motion.

The Civil Court correctly found in its May 9, 2017 order that plaintiff’s claim of law office failure did not rise to the level of a justifiable excuse (see Faith Acupuncture, P.C. v Government Empls. Ins. Co., 63 Misc 3d 156[A], 2019 NY Slip Op 50829[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pro Health Acupuncture, P.C. v GEICO Ins., 63 Misc 3d 136[A], 2019 NY Slip Op 50501[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order entered November 1, 2017 is modified by providing that, upon reargument, the order entered May 9, 2017 granting defendant’s motion to dismiss the complaint [*2]pursuant to CPLR 3216 is adhered to.

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

ENTER:
Paul Kenny
Chief Clerk

Decision Date: July 12, 2019

Cited in this decision

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

Faith Acupuncture, P.C. v Government Empls. Ins. Co. (2019 NY Slip Op 50829(U)) FollowedThe provider's unexplained law office failure did not justify its delay in filing a notice of trial after a 90-day demand.
Pro Health Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 50501(U)) FollowedThe provider's complaint was dismissed after it first sought to excuse noncompliance with a 90-day demand in sur-reply.

Similar decisions

Pro Health Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 51174(U))The insurer's dismissal under CPLR 3216 for failure to comply with a 90-day notice was reinstated upon reargument.
Faith Acupuncture, P.C. v Global Liberty Ins. (2017 NY Slip Op 51806(U))The insurer failed to establish its fee schedule defense and timely mailing of IME scheduling letters.
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.
Faith Acupuncture, P.C. v Maya Assur. Co. (2014 NY Slip Op 51863(U))The insurer failed to establish proper mailing of IME scheduling letters and was denied summary judgment on its nonappearance defense.
Silver Acupuncture, P.C. v GEICO (Gov. Employees) (2021 NY Slip Op 51163(U))The insurer's motion to dismiss for failure to prosecute under CPLR 3216 was granted and affirmed on appeal.