March 29, 2019

Pro Health Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 50501(U))

https://www.beynensonlaw.com/case-law/pro-health-acupuncture-p-c-v-geico-ins-2019-ny-slip-op-50501u/

Court: Appellate Term, Second Department
Decided: March 29, 2019
Citation: 2019 NY Slip Op 50501(U)
Posture: Other motion
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Defaults and vacatur Discovery and procedure

Cite as

Pro Health Acupuncture, P.C. v GEICO Ins., 2019 NY Slip Op 50501(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 provider's complaint was dismissed after it first sought to excuse noncompliance with a 90-day demand in sur-reply. After receiving the insurer's demand under CPLR 3216 (b) (3), the provider neither filed a notice of trial within 90 days under CPLR 3216 (c) nor timely moved to vacate the demand or extend the period under CPLR 2004. It therefore had to establish both a justifiable excuse and a meritorious cause of action in opposition to dismissal. Its attempt to make that showing for the first time in sur-reply should not have been considered. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's CPLR 3216 motion.

Reported in New York Official Reports at Pro Health Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 50501(U))

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

Pro Health Acupuncture, P.C., as Assignee of Anthony Johnson, Respondent,
against
GEICO Insurance, Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Zachary 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 February 10, 2017. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on May 10, 2011. Defendant interposed an answer on June 29, 2011. Defendant served plaintiff’s attorney with a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received on October 5, 2015. By notice of motion dated March 16, 2016, defendant moved, pursuant to CPLR 3216, to dismiss the complaint, alleging that plaintiff had not filed a notice of trial or otherwise responded to the 90-day demand. Plaintiff served a notice of trial on November 4, 2016 and served opposition to defendant’s motion on November 22, 2016, but did not seek to explain its delay in responding to the 90-day demand or set forth a meritorious cause of action until it served a sur-reply on February 6, 2017, four days before the motion was scheduled for oral argument. Defendant appeals from so much of an order of the Civil Court as denied its motion to dismiss.

Once a 90-day demand is served upon a plaintiff, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [c]), or 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]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d [*2]& 11th Jud Dists 2008]). Since plaintiff failed to do any of these, it was required, in opposition to defendant’s motion to dismiss, to establish both 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; A.M. Med., P.C., 22 Misc 3d 43). Plaintiff sought to make the required showing for the first time in sur-reply papers, which the Civil Court should not have considered (see HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d 983 [2015]; Flores v Stankiewicz, 35 AD3d 804 [2006]). Consequently, defendant’s motion should have been granted.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 29, 2019

Cited in this decision

A.M. Med., P.C. v State Farm Mut. Ins. Co. (2008 NY Slip Op 28487)The provider waived objections to defects in the insurer's 90-day demand and failed to justify its delay or show a meritorious claim.

Cited by

A label shows how the later decision treated this one.

Faith Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 51173(U)) FollowedThe insurer's CPLR 3216 dismissal was reinstated because the provider's law office failure claim was not a justifiable excuse.

Similar decisions

Silver Acupuncture, P.C. v GEICO Gen. Ins. Co. (2021 NY Slip Op 50833(U))The 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))The 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.
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.
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.