MIDWOOD TOTAL REHAB v. GEICO INSURANCE COMPANY (2019)

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, by an attorney-verified complaint, to recover assigned first-party no-fault benefits. Defendant interposed an answer in May 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 22, 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.