Reported in New York Official Reports at Dynamic Balance Acupuncture, P.C. v State Farm Ins. (2019 NY Slip Op 50171(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Insurance, Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 9, 2016. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). In an order entered March 9, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were the location of the generation of defendant’s EUO letters and matters relating to the reasonableness of its EUO requests. Defendant appeals from so much of the order as denied its motion for summary judgment dismissing the complaint.
To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016])—all elements that the Civil Court found to have been established pursuant to CPLR 3212 (g).
Plaintiff does not argue that defendant did not demonstrate its prima facie case. Rather, plaintiff argues that defendant’s EUO requests were unreasonable, in that defendant did not [*2]respond to plaintiff’s letter demanding that defendant provide its good faith reasons for requesting plaintiff’s EUO. However, as plaintiff failed to submit proof that it had mailed such a letter, its argument lacks any basis (see e.g. Professional Health Imaging, P.C. v State Farm Mut. Aut. Ins. Co., 52 Misc 3d 132[A], 2016 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In any event, defendant would not have been required to provide the reason for its demand in response to an objection from plaintiff (see Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.,44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]).
Plaintiff’s remaining contentions are without merit.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 08, 2019
Reported in New York Official Reports at Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50099(U))
| Lotus Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 50099(U) [62 Misc 3d 143(A)] |
| Decided on January 18, 2019 |
| 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 January 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-1772 K C
against
Country-Wide Ins. Co., Appellant.
Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $7,755.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
This action by a provider to recover assigned first-party no-fault benefits was consolidated for purposes of a nonjury trial with five other actions. After taking testimony as to the first of the six cases, Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason v Country-Wide Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2016-1765 K C], decided herewith), the Civil Court found in favor of plaintiff in this action, and a judgment awarding plaintiff the principal sum of $7,755 was entered accordingly.
We agree with defendant that the judgment must be reversed, as no testimony was taken as to this action, and a new trial should be held.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019
Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50098(U))
| Healthy Way Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 50098(U) [62 Misc 3d 142(A)] |
| Decided on January 18, 2019 |
| 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 January 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-1771 K C
against
Country-Wide Ins. Co., Appellant.
Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $13,205.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
This action by a provider to recover assigned first-party no-fault benefits was consolidated for purposes of a nonjury trial with five other actions. After taking testimony as to the first of the six cases, Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason v Country-Wide Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2016-1765 K C], decided herewith), the Civil Court found in favor of plaintiff in this action, and a judgment awarding plaintiff the principal sum of $13,205 was entered accordingly.
We agree with defendant that the judgment must be reversed, as no testimony was taken as to this action, and a new trial should be held.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019
Reported in New York Official Reports at Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50097(U))
| Lotus Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 50097(U) [62 Misc 3d 142(A)] |
| Decided on January 18, 2019 |
| 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 January 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-1770 K C
against
Country-Wide Ins. Co., Appellant.
Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,325.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
This action by a provider to recover assigned first-party no-fault benefits was consolidated for purposes of a nonjury trial with five other actions. After taking testimony as to the first of the six cases, Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason v Country-Wide Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2016-1765 K C], decided herewith), the Civil Court found in favor of plaintiff in this action, and a judgment awarding plaintiff the principal sum of $5,325 was entered accordingly.
We agree with defendant that the judgment must be reversed, as no testimony was taken as to this action, and a new trial should be held.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019
Reported in New York Official Reports at Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50096(U))
| Lotus Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 50096(U) [62 Misc 3d 142(A)] |
| Decided on January 18, 2019 |
| 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 January 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-1767 K C
against
Country-Wide Ins. Co., Appellant.
Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $7,855.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
This action by a provider to recover assigned first-party no-fault benefits was consolidated for purposes of a nonjury trial with five other actions. After taking testimony as to the first of the six cases, Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason v Country-Wide Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2016-1765 K C], decided herewith), the Civil Court found in favor of plaintiff in this action, and a judgment awarding plaintiff the principal sum of $7,855 was entered accordingly.
We agree with defendant that the judgment must be reversed, as no testimony was taken as to this action, and a new trial should be held.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019
Reported in New York Official Reports at Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50095(U))
| Lotus Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 50095(U) [62 Misc 3d 142(A)] |
| Decided on January 18, 2019 |
| 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 January 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-1766 K C
against
Country-Wide Ins. Co., Appellant.
Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,915.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
This action by a provider to recover assigned first-party no-fault benefits was consolidated for purposes of a nonjury trial with five other actions. After taking testimony as to the first of the six cases, Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason v Country-Wide Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2016-1765 K C], decided herewith), the Civil Court found in favor of plaintiff in this action, and a judgment awarding plaintiff the principal sum of $4,915 was entered accordingly.
We agree with defendant that the judgment must be reversed, as no testimony was taken as to this action, and a new trial should be held.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019
Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50094(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Country-Wide Ins. Co., Appellant.
Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered May 26, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $6,940.
ORDERED that the judgment is modified by reducing the award to the principal sum of $5,695; as so modified, the judgment is affirmed, without costs, and the matter is remitted to the Civil Court for a recalculation of statutory interest and the entry of an appropriate amended judgment thereafter.
This action by a provider to recover assigned first-party no-fault benefits as to seven claims was consolidated for a nonjury trial with five other actions. After the trial, the Civil Court found that plaintiff had established its prima facie case in this action and that defendant had failed to establish its defenses, and awarded judgment to plaintiff on all seven claims.
Contrary to defendant’s argument, plaintiff established its prima facie case as to the seven claims at issue in this action, totaling $6,940, as plaintiff demonstrated that the bills had been received by defendant and had not been paid (see Brand Med. Supply, Inc. v Infinity Ins. Co., 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
However, defendant correctly argues that it established that it had properly and timely [*2]denied three of the claims, for $605, $285 and $355, respectively, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). Defendant’s proof at trial was sufficient to demonstrate that defendant had timely mailed the IME scheduling letters and denials at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear at those IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As defendant proved that the assignor had violated a condition precedent to coverage (see id.), plaintiff was not entitled to recover on those bills.
Defendant’s remaining arguments lack merit.
Accordingly, the judgment is modified by reducing the award to the principal sum of $5,695; as so modified, the judgment is affirmed, and the matter is remitted to the Civil Court for a recalculation of statutory interest and the entry of an appropriate amended judgment thereafter.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019
Reported in New York Official Reports at Midwood Total Rehab, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50087(U))
| Midwood Total Rehab, P.C. v GEICO Ins. Co. |
| 2019 NY Slip Op 50087(U) [62 Misc 3d 142(A)] |
| Decided on January 17, 2019 |
| 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 January 17, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TERRY JANE RUDERMAN, J.P., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
2017-1137 N C
against
GEICO Insurance Company, Appellant.
The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Russell Friedman & Associates, LLP (Dara C. Goodman of counsel), for respondent.
Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated April 25, 2017. 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 March 2011, plaintiff commenced this action, by an attorney-verified complaint, to recover assigned first-party no-fault benefits. Defendant interposed an answer in May 2011. Over five years later, in November 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received by plaintiff on November 22, 2016. On March 22, 2017, defendant moved to dismiss the complaint, pursuant to CPLR 3216, as defendant had not been served with a notice of trial. On March 29, 2017, plaintiff served defendant with a notice of trial. Plaintiff’s counsel’s affirmation in opposition to defendant’s motion stated that plaintiff’s “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action.” By order dated April 25, 2017, the District Court denied the motion.
For the reasons stated in Schottenstein Pain & Neuro, PLLC, as Assignee of Bamidele Adebisi v GEICO Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-1131 N C], decided herewith), the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.
RUDERMAN, J.P., TOLBERT and GARGUILO, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 17, 2019
Reported in New York Official Reports at Yin Yang Harmony Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50086(U))
| Yin Yang Harmony Acupuncture, P.C. v GEICO Ins. Co. |
| 2019 NY Slip Op 50086(U) [62 Misc 3d 142(A)] |
| Decided on January 17, 2019 |
| 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 January 17, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TERRY JANE RUDERMAN, J.P., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
2017-1134 N C
against
GEICO Insurance Company, Appellant.
The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Russell Friedman & Associates, LLP (Dara C. Goodman of counsel), for respondent.
Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated April 25, 2017. 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 March 2011, plaintiff commenced this action to recover assigned first-party no-fault benefits. Defendant interposed an answer in April 2011. Over five years later, in November 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received by plaintiff on November 21, 2016. On March 22, 2017, defendant moved to dismiss the complaint, pursuant to CPLR 3216, as defendant had not been served with a notice of trial. On March 29, 2017, plaintiff served defendant with a notice of trial. Plaintiff’s counsel’s affirmation in opposition to defendant’s motion stated that plaintiff’s “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action.” By order dated April 25, 2017, the District Court denied the motion.
For the reasons stated in Schottenstein Pain & Neuro, PLLC, as Assignee of Bamidele Adebisi v GEICO Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-1131 N C], decided herewith), the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.
RUDERMAN, J.P., TOLBERT and GARGUILO, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 17, 2019
Reported in New York Official Reports at Schottenstein Pain & Neuro, PLLC v GEICO Ins. Co. (2019 NY Slip Op 50085(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
against
GEICO Insurance Company, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Russell Friedman & Associates, LLP (Dara C. Goodman of counsel), for respondent.
Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated April 25, 2017. 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 April 2011, plaintiff commenced this action, by an attorney-verified complaint, to recover assigned first-party no-fault benefits. Defendant interposed an answer in May 2011. Over five years later, in November 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received by plaintiff on November 22, 2016. On March 22, 2017, defendant moved to dismiss the complaint, pursuant to CPLR 3216, as defendant had not been served with a notice of trial. On March 29, 2017, plaintiff served defendant with a notice of trial. Plaintiff’s counsel’s affirmation in opposition to defendant’s motion stated that plaintiff’s “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action.” By order dated April 25, 2017, the District Court denied the motion.
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 & 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). Here, “plaintiff’s bare statement in its attorney’s affirmation, after a [37-day] delay in responding to defendant’s 90-day notice, that its ‘delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action,’ failed to establish a justifiable excuse for its delay” (Midwood Total Rehab, P.C. v GEICO Ins. Co., 59 Misc 3d 146[A], 2018 NY Slip Op 50763[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).
Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.
RUDERMAN, J.P., TOLBERT and GARGUILO, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 17, 2019