Yin Yang Harmony Acupuncture, P.C. v. GEICO Ins. Co.

Appellate Terms of the Supreme Court of New York

Yin Yang Harmony Acupuncture, P.C. v. GEICO Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 17, 2019

Docket2019 NYSlipOp 50086(U)

StatusPublished

This text of Yin Yang Harmony Acupuncture, P.C. v. GEICO Ins. Co. (Yin Yang Harmony Acupuncture, P.C. v. GEICO Ins. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Yin Yang Harmony Acupuncture, P.C. v. GEICO Ins. Co., (N.Y. Ct. App. 2019).

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Opinion

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

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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

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Yin Yang Harmony Acupuncture, P.C. v. GEICO Ins. Co., Counsel Stack Legal Research, https://law.counselstack.com/opinion/yin-yang-harmony-acupuncture-pc-v-geico-ins-co-nyappterm-2019.