Bronx Neurodiagnostics, P.C. v GEICO Ins. Co.

[*1] Bronx Neurodiagnostics, P.C. v GEICO Ins. Co. 2018 NY Slip Op 51820(U) Decided on December 7, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2017-521 Q C

Bronx Neurodiagnostics, P.C., as Assignee of Bouvier Patterson, Respondent,

against

GEICO Ins. Co., Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered January 31, 2017. The order, insofar as appealed from, denied defendant's motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion to dismiss the complaint pursuant to CPLR 3216 is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on January 9, 2007. Defendant interposed an answer on February 9, 2007. On September 1, 2016, defendant served plaintiff's attorney with a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received on September 12, 2016. On December 15, 2016, 94 days after it had received defendant's demand, plaintiff filed a notice of trial. By notice of motion dated December 20, 2016, defendant moved, pursuant to CPLR 3216, to dismiss the complaint, and plaintiff did not oppose the motion. Defendant appeals from so much of an order of the Civil Court as denied its motion to dismiss.

Upon receiving a 90-day demand, a plaintiff must either comply with the demand by filing a notice of trial within 90 days thereafter (see CPLR 3216 [b] [3]; [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]). We note that CPLR 3216 (b) (3) and (c) require some form of action within 90 days of the receipt of the demand, as opposed to the service of the demand, and, thus, the five-added-days-for-mailing provision of CPLR 2103 (b) (2) does not apply here. As plaintiff filed a notice of trial more than 90 days after its receipt of the 90-day demand and had not moved prior thereto to vacate the demand or to extend the 90-day period, it was required, [*2]in opposition to defendant's motion to dismiss, to establish both a justifiable excuse for its delay and the existence of a meritorious cause of action (see CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43). However, plaintiff failed to oppose defendant's motion. Consequently, it failed to demonstrate any ground to deny defendant's motion (see Wilson v Nembhardt, 180 AD2d 731, 734 [1992] ["it was an improvident exercise of discretion for the court to excuse the plaintiff's attorney's failure to oppose the appellant's motion to dismiss, a failure rendered all the more inexcusable in that it occurred while the plaintiff's attorney was already in default in properly complying with the outstanding 90-day notice"]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion to dismiss the complaint pursuant to CPLR 3216 is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 07, 2018