Kew Gardens Med & Rehab, P.C. v Travelers Ins. Co.

[*1] Kew Gardens Med & Rehab, P.C. v Travelers Ins. Co. 2010 NY Slip Op 51356(U) [28 Misc 3d 135(A)] Decided on July 29, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1349 Q C.

Kew Gardens Med & Rehab, P.C. as assignee of Linda Toussaint-Voigt, Appellant,

against

Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 29, 2009. The order denied plaintiff's motion to vacate a prior order which had granted on default defendant's motion to dismiss the complaint for failure to prosecute.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this action in July 2002 to recover assigned first-party no-fault benefits. Issue was joined in September 2002, and there was no further activity in relation to the litigation until March 2007, when defendant served on plaintiff's counsel of record a 90-day demand pursuant to CPLR 3216 (b). Plaintiff did not respond to the demand, and, by order entered November 24, 2008, the Civil Court granted defendant's motion pursuant to CPLR 3216 (a) to dismiss the complaint for failure to prosecute, upon plaintiff's default in opposing the motion. Thereafter, plaintiff moved to vacate the November 24, 2008 order, alleging that it had no notice of the motion, the papers having been improperly served on plaintiff's former counsel, who had been replaced as counsel by present counsel in May 2003. The Civil Court denied the motion, citing plaintiff's failure to produce a consent to change attorney form executed by plaintiff or to file said form with the Civil Court. Plaintiff appeals and we affirm.

If a notice of change of attorney form was executed in 2003, there is no proof that it was filed with the Civil Court at any time prior to defendant's service of the 90-day demand in March 2007 (see CPLR 321 [b]; Moustakas v Bouloukos, 112 AD2d 981, 983 [1985]). Plaintiff's present counsel does not claim that he communicated with defendant or its counsel during that four-year period, nor do any grounds appear on this record to support an inference that defendant was aware of the change of counsel, thereby rendering the filing requirement a mere "formality," [*2]which may be disregarded (Bevilacqua v Bloomberg, L.P., 70 AD3d 411, 412 [2010]). Consequently, the counsel on whom defendant served its 90-day demand remained the counsel of record, and service of the demand and of the subsequent motion to dismiss on said counsel was proper (Stancage v Stancage, 173 AD2d 1081 [1991]), as was the order dismissing the complaint on plaintiff's default in opposing defendant's motion to dismiss. Under the circumstances, the noncompliance with the filing and notice requirements of CPLR 321 (b) represented no mere neglect of formalities, but the failure to transfer representation to new counsel (Splinters, Inc. v Greenfield, 63 AD3d 717, 719 [2009]; Hawkins v Lenox Hill Hosp., 138 AD2d 572, 573 [1988]; Moustakas v Bouloukos, 112 AD2d at 983; see Weinstein-Korn-Miller, NY Civ Prac ¶ 321.11 [2d ed]).

Accordingly, the order denying plaintiff's motion to vacate the order dismissing the complaint is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010