January 17, 2019

Yin Yang Harmony Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50086(U))

Headnote

The court considered the fact that the plaintiff had commenced the action to recover no-fault benefits in March 2011 and that the defendant had interposed an answer in April 2011. In November 2016, over five years later, the defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3). Despite this, the plaintiff did not serve the defendant with a notice of trial until March 29, 2017. The main issue decided was whether the defendant's motion to dismiss the complaint pursuant to CPLR 3216 should be granted. The holding of the case was that the order of the District Court denying the motion was reversed, and the defendant's motion to dismiss the complaint pursuant to CPLR 3216 was granted. Therefore, the plaintiff's delay in responding to the 90-day notice was found to be sufficient to grant the defendant's motion to dismiss the complaint.

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)) [*1]

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This opinion is uncorrected and will not be published in the printed Official Reports.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

Yin Yang Harmony Acupuncture, P.C., as Assignee of Rene Marcelin, Respondent,
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