April 20, 2005
Comp. Mental Assmnt & Med. Care, P.C. v Government Employees Ins. (2005 NY Slip Op 50590(U))
Headnote
Reported in New York Official Reports at Comp. Mental Assmnt & Med. Care, P.C. v Government Employees Ins. (2005 NY Slip Op 50590(U))
| Comp. Mental Assmnt & Med. Care, P.C. v Government Employees Ins. |
| 2005 NY Slip Op 50590(U) |
| Decided on April 20, 2005 |
| District Court, Nassau County |
| Marber, J. |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
District Court, Nassau County
Comp. Mental Assmnt & Med. Care, P.C., as assignee of Craig Copie, Cynthia Gardnerbrim and Vladimir Vilensky, Plaintiff,
against Government Employees Ins., Defendant. |
32030/02
Randy Sue Marber, J.
Before this Court is another motion for summary judgment pursuant to CPLR §3212
brought by the plaintiff. In addition, the defendant cross-moves, pursuant to CPLR §3216, for an order dismissing the above entitled action for want of prosecution, and pursuant to CPLR 3212 dismissing the plaintiff’s complaint for failure to provide proof of its claim. Although not set forth in the Notice of Cross-Motion, the defendant also seeks to dismiss the complaint because the services were provided by independent contractors hired by the plaintiff, a professional corporation. The plaintiff cross-moved to compel discovery. The Court notes that by a stipulation of the parties, the plaintiff’s motion for summary judgment was withdrawn.
The plaintiff, a health care provider, commenced this action to recover the sum of $4,020.66, in first party no-fault benefits for medical services rendered to its assignor.
The defendant has complied with the statutory requirements of CPLR §3216(b), in that issue has been joined, one year has elapsed since the joinder of issue, and the defendant has served by certified mail/return receipt request a ninety (90) day written demand to the plaintiff to proceed with the action.
The ninety (90) day notice was sent to the plaintiff on May 14, 2004. Accordingly, the [*2]plaintiff had until August 16, 2004 to file a notice of trial or request more time within the prescribed time period.
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On or about September 28, 2004, after the ninety (90) day period had expired, the plaintiff served a motion for summary judgment and further asserted that it did not file a notice of trial because there was outstanding discovery.
To withstand the defendants’ motion to dismiss, the plaintiff was obliged to demonstrate both a justifiable excuse for failing to file a notice of trial within ninety (90) days of the defendant’s demand and a meritorious cause of action (see, CPLR 3216[e]; Nichols v. Agents Serv. Corp., 133 AD2d 912, 913). The plaintiff has not demonstrated a justifiable excuse for failing to file a notice of trial. The plaintiff claims that the reason for the delay was that there was a pending summary judgment motion that has not yet been decided and that discovery remains outstanding. The proffered excuse is insufficient to justify the delay (cf., Carmen v. West Hudson Hosp., 129 AD2d 868; MacLeod v. Nolte, 106 AD2d 860). If additional time was required, the plaintiff’s remedy was a motion either to vacate the ninety (90) day notice or to secure an extension of the ninety (90) day period (see, Mason v. Simmons, 139 AD2d 880, 881). Moreover, the summary judgment motion was not filed until after the ninety (90) day period.
Accordingly, the plaintiff’s action is hereby dismissed.
This constitutes the decision and order of this Court.
Dated: April 20, 2005
ENTER:
_________________________________
Randy Sue Marber, District Court Judge