Pro Health Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 51174(U))

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 21, 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 11, 2017, and, upon reargument, vacated the order entered May 11, 2017 and denied defendant’s motion.

ORDERED that the order entered November 21, 2017 is modified by providing that, upon reargument, the order entered May 11, 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 11, 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 21, 2017 granting plaintiff’s motion.

For the reasons stated in Faith Acupuncture, P.C., as Assignee of Igor Shkundin, v GEICO Ins. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2018-302 K C], decided herewith), the order entered November 21, 2017 is modified by providing that, upon reargument, the order entered May 11, 2017 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is adhered to.

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