Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
TRUE-ALIGN CHIROPRACTIC CARE, P.C., as Assignee of Mersedes Ynosenciaa, Appellant, v. GEICO INS. CO., Respondent.
ORDERED that the order is affirmed, with $25 costs.
Plaintiff commenced this action in January 2014 to recover assigned first-party no-fault benefits. Issue was joined in February 2014. On May 5, 2017, defendant served a 90-day notice pursuant to CPLR 3216 (b) (3). Plaintiff did not file a notice of trial, move to vacate the 90-day notice, or move to extend the 90 days. In September 2017, defendant moved to dismiss the complaint pursuant to CPLR 3216. By order entered September 4, 2018, the Civil Court granted defendant's motion.
Except under circumstances not present here, a plaintiff seeking to avoid dismissal pursuant to CPLR 3216 is required to demonstrate both a justifiable excuse for its delay and a meritorious cause of action (see CPLR 3216 [e]; Baczkowski v. Collins Constr. Co., 89 NY2d 499 [1997]; Belson v. Dix Hills A.C., Inc., 119 AD3d 623 [2014]). Here, plaintiff merely offered a conclusory excuse. Moreover, plaintiff's attorney's statement that bills had been submitted to defendant and had not been paid was insufficient to demonstrate that plaintiff had a potentially meritorious cause of action (see Sortino v. Fisher, 20 AD2d 25 [1963]; Restoration Sports & Spine v GEICO Ins. Co., 45 Misc 3d 134[A], 2014 NY Slip Op. 51730[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ).
Accordingly, the order granting defendant's motion to dismiss the complaint pursuant to CPLR 3216 was properly granted.
ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: 2018-2195 K C
Decided: October 30, 2020
Court: Supreme Court, Appellate Term, New York.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)