Silver Acupuncture, P.C. v. Geico Gen. Ins. Co.

• Decision Date: 20 August 2021
• Docket Number: 2019-1392 K C
• Citation: 72 Misc.3d 140 (A),151 N.Y.S.3d 795 (Table)
• Parties: SILVER ACUPUNCTURE, P.C., as Assignee of Lamecca Anderson, Respondent, v. GEICO GENERAL INS. CO., Appellant.
• Court: New York Supreme Court — Appellate Term

72 Misc.3d 140 (A)

151 N.Y.S.3d 795 (Table)

SILVER ACUPUNCTURE, P.C., as Assignee of Lamecca Anderson, Respondent,

v.GEICO GENERAL INS. CO., Appellant.

2019-1392 K C

Supreme Court, Appellate Term, New York, Second Dept., 2, 11, 13 Jud. Dist.

Decided on August 20, 2021

Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for appellant.

Kopelevich & Feldsherova, P.C., for respondent (no brief filed).

PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ.

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

In August 2013, plaintiff commenced this action to recover assigned first-party no-fault benefits. Defendant interposed an answer in September 2013. In April 2017, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3). On July 12, 2018, defendant moved, pursuant to CPLR 3216, to dismiss the complaint for want of prosecution. In opposition to the motion, plaintiff's counsel's calendar clerk submitted an affidavit wherein he stated that a notice of trial had been served upon defendant but it had not been filed with the court due to law office failure and that plaintiff had a meritorious cause of action. By order entered June 26, 2019, the Civil Court denied defendant's motion, stating "[d]efendant was free to file the Notice of Trial it received or to have filed its own Notice of Trial at any juncture in this action."

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]). Here, since plaintiff failed to file 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, defendant properly moved to dismiss the complaint. The Civil Court denied defendant's CPLR 3216 motion on the ground that defendant could have filed its own notice of trial. This was improper because, while any party may file a notice of trial (see CCA 1301 ; CPLR 3402 [a] ), defendant had no obligation to do so.

The affidavit submitted by plaintiff in opposition to defendant's motion did not provide a detailed and credible explanation of the law office failure that had caused the attorney's failure to file the notice of trial (see Premier Surgical Servs. P.C. v Allstate Ins. Co. , 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Bayshore Chiropractic, P.C. v Allstate Ins. Co. , 56 Misc 3d 141[A], 2017 NY Slip Op 51121[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Comeau v McClacken , 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]). Under the circumstances presented, we find that plaintiff's claim of law office failure (see CPLR 2005 ) did not rise to the level of a justifiable excuse (see Sacramone v Tunick , 54 AD2d 897 [1976] ; see also Housen v Boston Mkt. Corp. , 166 AD3d 593 [2018] ).

In view of the foregoing, it is unnecessary to consider whether plaintiff...