April 13, 2026

Life Care Physical Therapy P.C. v Geico Gen. Ins. Co. (2026 NY Slip Op 50519(U))

Headnote

The provider's substitution of counsel and prompt prosecution excused delay under CPLR 3216, but interest was suspended. The Civil Court, Kings County, denied the insurer's motion to dismiss the assigned no-fault action for want of prosecution. CPLR 3216 permits rather than requires dismissal for unreasonable neglect to proceed, and public policy favors resolution on the merits. New counsel filed opposition and a notice of trial within five days of substitution, and the provider established a potentially meritorious cause of action. The court found the delay excusable but stayed interest from March 10, 2022 through March 26, 2025, so that the provider would not benefit from the delay.

Reported in New York Official Reports at Life Care Physical Therapy P.C. v Geico Gen. Ins. Co. (2026 NY Slip Op 50519(U))

Life Care Physical Therapy P.C. v Geico Gen. Ins. Co.
2026 NY Slip Op 50519(U) [88 Misc 3d 1253(A)]
Decided on April 13, 2026
Civil Court of the City of New York, Kings County
Sandra Elena Roper, J.
As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


Digest-Index Classification: Dismissal and Nonsuit—Want of Prosecution—Excusable Delay

Life Care Physical Therapy P.C. A/A/O LISA COX, Plaintiff(s)

v

Geico General Ins. Co., Defendant(s)

Civil Court of the City of New York, Kings County

Decided on April 13, 2026

Index No. CV-748345-19/KI

Kopelevich & Feldsherova, P.C., Brooklyn, for Plaintiff.

Law Offices of Goldstein & Flecker, Melville, for Defendant.

Sandra Elena Roper, J.

[*1]

Recitation, as required by CPLR §2219(a) of the papers considered in the review of this Motion:

Papers

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed

Answering Affidavits

Replying Affidavits 2

Exhibits

Other

Upon the foregoing cited papers, and after oral arguments by the parties, the Decision/Order on Defendant’s Motion to Dismiss for Want of Prosecution pursuant to CPLR 3216 is hereby DENIED:

“CPLR 3216 is extremely forgiving of litigation delay, in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed. If [the] plaintiff makes a sufficient showing, the court is prohibited from dismissing the action. [P]ublic policy strongly favors the resolution of actions on the merits whenever possible” (James B. Nutter & Co. v Hutson, 241 AD3d 520, 521 [2d Dept 2025], quoting LoRusso v DeLuca, 204 AD3d 660, 661 [2d Dept 2022], see Baczkowski v D.A. Collins Constr. Co., 89 NY2d 499, 503 [1997], see also Bank of Am., N.A. v Nicolosi, 200 AD3d 1018, 1021 [2d Dept 2021], see also Krause v Lobacz, 131 AD3d 1128, 1129 [2d Dept 2015], see also Chase Home Fin., LLC v Shoumatoff, 192 AD3d 1352 [3d Dept 2021]).

In this instant matter, Plaintiff recognized the ineffectiveness of its previous counsel and accordingly substituted same to its current counsel of record on October 21, 2025. Plaintiffs new counsel drafted its opposition dated October 24, 2025, which was filed on October 26, 2025, a [*2]mere five days upon said change of counsel. Further, Plaintiff filed the Notice of Trial on October 26, 2025. In keeping with the “forgiving” nature of litigation delays pursuant to CPLR 3216, This Court in the judicious exercise of its discretion, does not find the Plaintiff’s actions unreasonable neglect to proceed (id). On the contrary, Plaintiff in moving its stagnant case opted for substitution of counsel to proceed posthaste. Thus, the delay in the proceedings here is found to be excusable. Nevertheless, excusable delay shall not inure to Plaintiff’s benefit. Accordingly, the interest herein shall be stayed from the date of Defendant’s filing of this motion to the date Plaintiff filed the Notice of Trial, March 10, 2022, to March 26, 2025. Furthermore, Plaintiff established a potentiality of a meritorious cause of action.

This constitutes the Decision and Order of This Court.

Date April 13, 2026

Hon Sandra Elena Roper, JCC

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