SILVER ACUPUNCTURE v. GEICO (2021)

Supreme Court, Appellate Term, New York,

SILVER ACUPUNCTURE, P.C., as Assignee of Laura Brown, Appellant, v. GEICO (Gov. Employees), Respondent.

2020-700 K C

Decided: November 19, 2021

PRESENT: DAVID ELLIOT, J.P., MICHELLE WESTON, DONNA-MARIE E. GOLIA, JJ.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Office of Goldstein Flecker & Hopkins (Lawrence J. Chanice of counsel), for respondent.

ORDERED that the order is affirmed, with $25 costs.

In July 2013, plaintiff commenced this action to recover assigned first-party no-fault benefits. In January 2019, defendant moved pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute the action on the ground that plaintiff had failed to file a notice of trial within 90 days of defendant's service upon plaintiff of a 90-day demand. It is undisputed that a notice of trial was served within the 90-day period, but that it had not been filed. In opposition to the motion, plaintiff's counsel's calendar clerk submitted an affidavit wherein he stated that the failure to file the notice of trial was due to law office failure. Plaintiff's owner and treating acupuncturist submitted an affidavit wherein she stated that plaintiff had a meritorious cause of action. By order entered February 21, 2020, the Civil Court granted defendant's motion.

A similar issue was presented in Silver Acupuncture, P.C. v GEICO Gen. Ins. Co. (72 Misc 3d 140[A], 2021 NY Slip Op 50833[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]), wherein a nearly identical affidavit from the same calendar clerk was annexed to the plaintiff's opposition papers.

Accordingly, for the reasons stated in Silver Acupuncture, P.C. (2021 NY Slip Op 50833[U]), the order is affirmed (see also Silver Acupuncture, P.C. v GEICO Indem. Co., 69 Misc 3d 128[A], 2020 NY Slip Op 51134[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

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