Opinion
5251/03.
Decided September 13, 2005.
Israel, Israel Purdy, LLP, Great Neck, NY, attorneys for plaintiff; Nicolini, Paradise, Ferretti Sabella, Mineola, NY, attorneys for defendant.
Defendant moves pursuant to CPLR 3216 for an order dismissing plaintiff's complaint for failure to prosecute the within action. Plaintiff opposes the motion.
Defendant asserts in its motion papers to dismiss, that this action was instituted by plaintiff by service on defendant on June 30, 2003. Defendant served its answer on plaintiff on July 31, 2003 and filed a copy of said answer with the Court on August 18, 2003. On September 7, 2004 defendant served a 90 day notice to properly serve and file a Notice of Trial pursuant to CPLR 3216 on plaintiff by certified mail, return receipt requested. When plaintiff failed to place the case on the calendar within 90 days, defendant brought the within motion by service on plaintiff on May 5, 2005.
Defendant has complied with all of the requirements of CPLR 3216. Plaintiff, however, failed to file a Notice of Trial or request an extension of the ninety days from the Court. Plaintiff claims that it "served" a Notice of Trial in this matter upon defendant's attorneys on June 30, 2005. However, the Notice of Trial was never "filed" as required by CPLR 3216 nor was it timely. The sole reason provided by plaintiff for failure to comply with the CPLR 3216 notice is that its attorneys' computer system was not properly updated to reflect receipt of the Ninety Day Notice. No further explanation is provided. Excuses amounting to law office failure are insufficient to defeat a motion to dismiss for want of prosecution ( Scott v. 99th Commercial St., Inc., 87 AD2d 626, 448 NYS2d 235 [2nd Dept 1982]; see, also, Gohery v. Spartan Concrete Corp., 85 AD2d 678, 445 NYS2d 512, affirmed 56 NY2d 785, 452 NYS2d 400, 437 NE2d 1157]).
In addition to a justifiable excuse for the delay, plaintiff is required to have a good and meritorious cause of action (CPLR 3216[c]). Plaintiff has annexed to its opposition papers, a form affidavit from Jonathan Landow, M.D., an officer of the plaintiff who treated the assignor. Dr. Landow incorporates the medical report attached to the summons and verified complaint to establish that the services provided to its assignor were reasonable and medically necessary. The medical report allegedly annexed to the summons and verified complaint was not included in the opposition papers. A review by the Court of a physician's report annexed to the summons and complaint in both the Court file and defendant's motion papers, reflects that same is not sworn to and merely recommends a continuation of massage therapy three times a week. Medical records on which the charges are based are all signed by individuals with the initials "LMT" (Licensed Massage Therapist) following their names. None of the services rendered to plaintiff's assignor was by any other professional. As stated in Sortino v. Fisher, 20 AD2d 25, 31-32, 245 NYS2d 186, 194-195 (1st Dept 1963): ". . . there is an intimate relationship between the merit of an action and the fact that it has been neglected. It is for this reason that in defending a proper motion to dismiss for neglect it is essential that plaintiff supply an affidavit of merits. Such affidavit, by the party or another person with knowledge of the facts, must contain evidentiary facts establishing that plaintiff has a viable cause of action. It must be as good as the kind of affidavit which could defeat a motion for summary judgment on the ground that there is no issue of fact (e.g., Gallagher v. Clafington, Inc., 7 AD2d 627, 179 NYS2d 360, and cases cited; Milligan v. Hycel Realty Corp., supra; see Tripp, A Guide to Motion Practice [rev. ed.] § 20, esp. cum. suppl. 1955-1962)."
Further, the fee schedule under which the physical medicine modalities were submitted is the Worker's Compensation Medical Fee Schedule which is incorporated into the New York Insurance Law § 5108(a)-(b) (the No-Fault Law). This schedule requires that the services be performed by a physician or a duly licensed physical therapist or occupational therapist operating under the supervision of a physician. A licensed massage therapist is not entitled to reimbursement ( see Evevsky v. Liberty Mutual Group, 11 AD3d 778, 783 NYS2d 96, 2004 WL 2360404 [3rd Dept 2004]). Therefore, plaintiff does not have a meritorious cause of action.
Plaintiff's opposition to defendant's motion fails to show a justifiable excuse for the delay or a meritorious cause of action.
Accordingly, defendant's motion is granted and plaintiff's complaint is dismissed.