Opinion
2021-50834
08-20-2021
St. Locher Medical, P.C., as Assignee of Brenda Hill, Respondent, v. GEICO Indemnity Company, Appellant.
Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).
Unpublished Opinion
Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for appellant.
Kopelevich & Feldsherova, P.C., for respondent (no brief filed).
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 26, 2019. 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 August 2013, plaintiff commenced this action to recover assigned first-party no-fault benefits. Defendant interposed an answer in September 2013. In April 2017, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3). On July 12, 2018, defendant moved, pursuant to CPLR 3216, to dismiss the complaint for want of prosecution. In opposition to the motion, plaintiff's counsel's calendar clerk submitted an affidavit wherein he stated that a notice of trial had been served upon defendant but it had not been filed with the court due to law office failure and that plaintiff had a meritorious cause of action. By order entered June 26, 2019, the Civil Court denied defendant's motion, stating "[d]efendant was free to file the Notice of Trial it received or to have filed its own Notice of Trial at any juncture in this action."
For the reasons stated in Silver Acupuncture, P.C., as Assignee of Lamecca Anderson v GEICO General Ins. Co. (___ Misc.3d ___, 2021 NY Slip Op _____ [appeal No. 2019-1392 K C], decided herewith), the order is reversed and defendant's motion to dismiss the complaint pursuant to CPLR 3216 is granted.
ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.