Restoration Sports & Spine v Geico Ins. Co.

[*1] Restoration Sports & Spine v Geico Ins. Co. 2014 NY Slip Op 51729(U) 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 This opinion is uncorrected and will not be published in the printed Official Reports.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