May 1, 2015

South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Geico Ins. Co. (2015 NY Slip Op 50674(U))

https://www.beynensonlaw.com/case-law/south-nassau-orthopedic-surgery-sports-medicine-p-c-v-geico-ins-co-2015-ny-slip-op-50674u/

Court
Appellate Term, Second Department
Decided
May 1, 2015
Citation
2015 NY Slip Op 50674(U)
Posture
Other motion
Outcome
Insurer prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Defaults and vacatur
Cite as
South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Geico Ins. Co., 2015 NY Slip Op 50674(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 under CPLR 3216 because it ignored a 90-day demand and offered neither an excuse nor proof of merit. A Civil Court plaintiff receiving such a demand must file a notice of trial under CPLR 3216 (c) or timely seek vacatur or an extension under CPLR 2004. The provider did neither. Although CPLR 3216 (e) permits discretion and exceptional denial of dismissal even with an unjustifiable excuse, following Baczkowski v Collins Constr. Co., the provider made no attempt to show an excuse or a meritorious cause of action. The Appellate Term, Second Department, reversed the order and granted the insurer's dismissal motion.

Reported in New York Official Reports at South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Geico Ins. Co. (2015 NY Slip Op 50674(U))

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

South Nassau Orthopedic Surgery & Sports Medicine, P.C. as Assignee of JENNIFER CANTOS, Respondent,

against

GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz,J.), entered November 28, 2012. 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 this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3216, to dismiss the complaint based upon plaintiff’s failure to prosecute the action. Plaintiff opposed the motion, contending that it had been prosecuting the action and that only about four months had elapsed since defendant’s motion for summary judgment had been denied by the Civil Court. The Civil Court denied defendant’s motion, finding that, since only four months had passed from the time plaintiff had served defendant with a copy of the order denying defendant’s motion for summary judgment, with notice of entry, dismissal pursuant to CPLR 3216 was not warranted.

Once a 90-day demand is received by a plaintiff, in a Civil Court action, 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 & 11th Jud Dists 2008]). Since plaintiff failed to do either of these, it was required, in opposition to defendant’s motion to dismiss, to establish 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).

As plaintiff notes, in Baczkowski (89 NY2d at 503), the Court of Appeals stated that CPLR 3216 is “extremely forgiving” and, “depending on the circumstances, a plaintiff is not always required to establish both a justifiable excuse and a potentially meritorious cause of action to avoid such a dismissal” (see Davis v Goodsell, 6 AD3d 382, 383-384 [2004]). However, the Court of Appeals further stated:


“If plaintiff fails to demonstrate a justifiable excuse, the statute says the court may’ dismiss the action—it does not say must’ (see, CPLR 3216 [e])—but this presupposes that plaintiff has tendered some excuse in response to the motion in an attempt to satisfy the statutory threshold.
Although a court may possess residual discretion to deny a motion to dismiss when plaintiff tenders even an unjustifiable excuse, this discretion should be exercised sparingly to honor the balance struck by the generous statutory protections already built into CPLR 3216. Even such exceptional exercises of discretion, moreover, would be reviewable within the Appellate Division’s plenary discretionary authority. If plaintiff unjustifiably fails to comply with the 90-day requirement, knowing full well that the action can be saved simply by filing a note of issue but is subject to dismissal otherwise, the culpability for the resulting dismissal is squarely placed at the door of plaintiff or plaintiff’s counsel. Were courts routinely to deny motions to dismiss even after plaintiff has ignored the 90-day period without an adequate excuse, the procedure established by CPLR 3216 would be rendered meaningless” (Baczkowski, 89 NY2d at 504-505).

In the instant case, in opposition to defendant’s motion to dismiss the complaint, plaintiff made no attempt to demonstrate the existence of an excuse, justifiable or otherwise, for plaintiff’s failure to comply with the 90-day notice. Nor did plaintiff make any attempt to demonstrate that it possessed a meritorious cause of action.

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

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


Decision Date: May 01, 2015

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