February 7, 2020

Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50238(U))

Headnote

The court considered the fact that the defendant moved to dismiss the complaint on the ground of laches, based on the plaintiff's delay in prosecuting the action. The Civil Court granted this branch of the defendant's motion and found that the remaining branches of the motion were moot. However, the court held that it has no power to dismiss an action for gross laches or failure to prosecute in the absence of a 90-day demand to serve and file a notice of trial. The doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216. Since the defendant did not claim to have served a demand pursuant to CPLR 3216, it was an error to dismiss the complaint based on laches. The court reversed the order, denied the branch of the defendant's motion seeking to dismiss the complaint on the ground of laches, and remitted the matter to the Civil Court for a determination of the remaining branches of the defendant's motion.

Reported in New York Official Reports at Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50238(U))

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

Rockaway Medical & Diagnostic, P.C., as Assignee of Ramon Ortiz, Appellant,

against

State Farm Mutual Insurance Co., Respondent.

Law Office of David O’Connor, P.C. (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered July 3, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.

ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.

“[A] court ‘ha[s] no power whatsoever’ to dismiss an action for gross laches or failure to prosecute in the absence of a 90-day demand to serve and file a [notice of trial]” (Arroyo v Board of Educ. of City of NY, 110 AD3d 17, 20 [2013], quoting Hodge v New York City Tr. Auth., 273 AD2d 42, 43 [2000]; see also Chase v Scavuzzo, 87 NY2d 228 [1995]; General Assur. Co. v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and “the doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216 (b)” (Arroyo, 110 AD3d at 20; see also Montalvo v Mumpus Restorations, Inc., 110 AD3d 1045 [2013]). As defendant does not claim to have served a demand pursuant to CPLR 3216, it was error for the Civil Court to grant the branch of defendant’s motion seeking to dismiss the complaint based on laches.

In light of this court’s determination, the matter must be remitted to the Civil Court for a determination of the remaining branches of defendant’s motion, as they are no longer moot.

Accordingly, the order is reversed, the branch of defendant’s motion seeking to dismiss [*2]the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 7, 2020