January 17, 2019

Midwood Total Rehab, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50087(U))

Headnote

The court considered the fact that the plaintiff had commenced an action in March 2011 to recover assigned first-party no-fault benefits and the defendant served a 90-day written demand pursuant to CPLR 3216 in November 2016. The main issue was whether the plaintiff's delay in responding to the defendant's 90-day notice was willful or contumacious, and whether it evidenced an intent to abandon the action. The holding of the case was that the court reversed the order and granted the defendant's motion to dismiss the complaint pursuant to CPLR 3216, based on the reasons stated in a similar case.

Reported in New York Official Reports at Midwood Total Rehab, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50087(U))

Midwood Total Rehab, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50087(U)) [*1]

Midwood Total Rehab, P.C. v GEICO Ins. Co.

2019 NY Slip Op 50087(U) [62 Misc 3d 142(A)]

Decided on January 17, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 17, 2019

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

PRESENT: : TERRY JANE RUDERMAN, J.P., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
2017-1137 N C

Midwood Total Rehab, P.C., as Assignee of Diadina Cruz, Respondent,
against
GEICO Insurance Company, Appellant.

The Law Office of Printz & Goldstein (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 March 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.

For the reasons stated in Schottenstein Pain & Neuro, PLLC, as Assignee of Bamidele Adebisi v GEICO Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-1131 N C], decided herewith), 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