February 28, 2014

Q-B Jewish Med. Rehabilitation, P.C. v Metlife Ins. Co. (2014 NY Slip Op 50354(U))

Headnote

The court considered the fact that in an action to recover assigned first-party no-fault benefits, the case was marked off the trial calendar in August 2010, and in September 2011, the defendant moved to dismiss the complaint based on the claim that the plaintiff had abandoned the case by failing to move to restore it to the trial calendar within one year after it was stricken. The defendant also moved to dismiss the complaint because the plaintiff failed to provide requested disclosure. The main issues decided were whether the Civil Court erred in dismissing the complaint as abandoned under the Civil Court rule, and whether the matter should be remitted to the Civil Court for a determination of the branch of defendant's motion seeking dismissal of the complaint pursuant to CPLR 3126. The holding of the case was that the Civil Court erred in dismissing the complaint as abandoned, and the matter was remitted to the Civil Court for a determination of the branch of defendant's motion seeking dismissal of the complaint pursuant to CPLR 3126.

Reported in New York Official Reports at Q-B Jewish Med. Rehabilitation, P.C. v Metlife Ins. Co. (2014 NY Slip Op 50354(U))

Q-B Jewish Med. Rehabilitation, P.C. v Metlife Ins. Co. (2014 NY Slip Op 50354(U)) [*1]

Q-B Jewish Med. Rehabilitation, P.C. v Metlife Ins. Co.

2014 NY Slip Op 50354(U) [42 Misc 3d 146(A)]

Decided on February 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ
2012-1886 Q C.

Q-B Jewish Med. Rehabilitation, P.C. as Assignee of GARY SUYUNOV, Appellant,
against
Metlife Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 17, 2012. The order granted the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking dismissal of the complaint pursuant to CPLR 3126.

In this action to recover assigned first-party no-fault benefits, plaintiff filed a notice of trial on August 5, 2009. In August of 2010, the case was marked off the trial calendar, and in September of 2011, defendant moved to dismiss the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 on the ground that plaintiff had abandoned the case by failing to move to restore it to the trial calender within one year after it was stricken. Defendant moved, in the alternative, to dismiss the complaint pursuant to CPLR 3126, on the ground that plaintiff had failed to provide requested disclosure. Plaintiff appeals from an order of the Civil Court which granted the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14.

Contrary to defendant’s assertion, the Civil Court rule which governs actions stricken from the calendar (Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14) has no provision for dismissing a complaint as abandoned (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, 456 [2007]). Thus, the Civil Court erred in dismissing the complaint on this ground.

Defendant moved, in the alternative, to dismiss the complaint pursuant to CPLR 3126. Since the Civil Court did not address this branch of defendant’s motion, the matter is remitted to the Civil Court for a determination thereof.

Accordingly, the order is reversed, the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking dismissal of the complaint pursuant to CPLR 3126.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014