December 5, 2014

Restoration Sports & Spine v Geico Ins. Co. (2014 NY Slip Op 51729(U))

Headnote

The court considered the fact that the plaintiffs commenced an action to recover assigned first-party no-fault benefits in September 2008, and the defendant served a 90-day notice pursuant to CPLR 3216 (b) (3) on June 25, 2011. The plaintiffs did not file a notice of trial, move to vacate the 90-day notice, or move to extend the 90 days. The main issue decided was whether the plaintiffs demonstrated a justifiable excuse for their delay and a meritorious cause of action to avoid dismissal pursuant to CPLR 3216. The holding of the court was that the plaintiffs' attorney's statement that bills had been submitted to the defendant and had not been paid within 30 days of their submission was insufficient to demonstrate the merit of plaintiffs' case, and the plaintiff did not commence the action upon a verified complaint. Therefore, the court reversed the order and granted the defendant's motion to dismiss the complaint pursuant to CPLR 3216.

Reported in New York Official Reports at Restoration Sports & Spine v Geico Ins. Co. (2014 NY Slip Op 51729(U))

Restoration Sports & Spine v Geico Ins. Co. (2014 NY Slip Op 51729(U)) [*1]

Restoration Sports & Spine v Geico Ins. Co.

2014 NY Slip Op 51729(U) [45 Misc 3d 134(A)]

Decided on December 5, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2014

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

PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2012-1983 Q C

Restoration Sports & Spine as Assignee of MICHELLE MURDOCK, JOHN T. RIGNEY, M.D., as Assignee of BRUCE STEINOWITZ and DORA SCHIVELY, M.D., as Assignee of STEVEN ZEIKOWITZ, Respondents,
against
Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 25, 2012. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

Plaintiffs commenced this action to recover assigned first-party no-fault benefits in September 2008. On June 25, 2011, defendant served a 90-day notice pursuant to CPLR 3216 (b) (3). Plaintiffs did not file a notice of trial, move to vacate the 90-day notice, or move to extend the 90 days. In April 2012, defendant moved to dismiss the complaint pursuant to CPLR 3216. The Civil Court denied defendant’s motion.

Except under circumstances not presented here, a plaintiff seeking to avoid dismissal pursuant to CPLR 3216 is required to demonstrate both a justifiable excuse for its delay and a meritorious cause of action (see CPLR 3216 [e]; Belson v Dix Hills Air Conditioning, Inc., 119 AD3d 623 [2014]; Davis v Goodsell, 6 AD3d 382, 384 [2004]; Lama v Mohammad, 29 Misc 3d 68 [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, plaintiffs’ attorney’s conclusory statement that bills had been submitted to defendant and had not been paid within 30 days of their submission was insufficient to demonstrate the merit of plaintiffs’ case (see Sortino v Fisher, 20 AD2d 25 [1963]; Lama, 29 Misc 3d 68; Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d & 11th Jud Dists 2004]). Moreover, plaintiff did not commence this action upon a verified complaint (CPLR 105 [U]).

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

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decision Date: December 05, 2014