Opinion
2018-302 K C
07-12-2019
FAITH ACUPUNCTURE, P.C., as Assignee of Igor Shkundin, Respondent, v. 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.
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.
PRESENT: MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
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 pursuant to CPLR 3216 is adhered to.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.