July 12, 2019

Faith Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 51173(U))

Headnote

The court considered a motion to dismiss a complaint by defendant GEICO Insurance, based on the plaintiff Faith Acupuncture, P.C.'s failure to comply with a 90-day notice in a no-fault benefits case. The Civil Court initially granted defendant's motion to dismiss, finding that plaintiff's claim of law office failure did not constitute a justifiable excuse. Plaintiff then moved for reargument, which was granted, resulting in an order denying defendant's motion to dismiss. The main issue decided was whether plaintiff's failure to comply with the 90-day notice warranted dismissal of the complaint. The holding of the case was that the order granting defendant's motion to dismiss the complaint pursuant to CPLR 3216 was adhered to, thereby affirming the decision to dismiss the complaint.

Reported in New York Official Reports at Faith Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 51173(U))

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

Faith Acupuncture, P.C., as Assignee of Igor Shkundin, Respondent,
against
GEICO Insurance, Appellant.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Zachary Albright Whiting of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered November 1, 2017. The order granted plaintiff’s motion for leave to reargue its opposition to defendant’s prior motion to dismiss the complaint pursuant to CPLR 3216, which prior motion had been granted in an order of that court entered May 9, 2017, and, upon reargument, vacated the order entered May 9, 2017 and denied defendant’s motion.

ORDERED that the order entered November 1, 2017 is modified by providing that, upon reargument, the order entered May 9, 2017 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is adhered to; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3216 based upon plaintiff’s failure to comply with a 90-day notice, which motion was granted by order of the Civil Court entered May 9, 2017. Plaintiff subsequently moved for leave to reargue its opposition to that motion, and, upon reargument, to deny defendant’s motion. Defendant appeals from an order of the Civil Court entered November 1, 2017 granting plaintiff’s motion.

The Civil Court correctly found in its May 9, 2017 order that plaintiff’s claim of law office failure did not rise to the level of a justifiable excuse (see Faith Acupuncture, P.C. v Government Empls. Ins. Co., 63 Misc 3d 156[A], 2019 NY Slip Op 50829[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pro Health Acupuncture, P.C. v GEICO Ins., 63 Misc 3d 136[A], 2019 NY Slip Op 50501[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order entered November 1, 2017 is modified by providing that, upon reargument, the order entered May 9, 2017 granting defendant’s motion to dismiss the complaint [*2]pursuant to CPLR 3216 is adhered to.

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk

Decision Date: July 12, 2019