Plaintiff ’s Failure to Comply With 90-Day Notice Results in Dismissal : South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Geico Ins. Co.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz,J.), entered November 28, 2012. The order denied defendant’s motion to dis- miss 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 this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3216, to dismiss the complaint based upon plain- tiff ’s failure to prosecute the action. Plaintiff opposed the motion, contending that it had been prosecuting the action and that only about four months had elapsed since defendant’s motion for summary judgment had been denied by the Civil Court. The Civil Court denied defendant’s motion, finding that, since only four months had passed from the time plaintiff had served defendant with a copy of the order denying defendant’s motion for sum- mary judgment, with notice of entry, dis- missal pursuant to CPLR 3216 was not warranted.

Once a 90-day demand is received by a plaintiff, in a Civil Court action, the plaintiff must either comply with the demand by fil- ing a notice of trial within 90 days (see  CPLR 3216 [c]), or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653  [2008];  Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2008]). Since plaintiff failed to do either of these, it was required, in opposition to defendant’s motion to dismiss, to establish a justifiable excuse for its delay in properly responding to the 90-day demand, and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43).

As plaintiff notes, in  Baczkowski  (89 NY2d at 503), the Court of Appeals stated that CPLR 3216 is “extremely forgiving” and, “depending on the circumstances, a plaintiff is not always required to establish both a justifiable excuse and a potentially meritorious cause of action to avoid such a dismissal” (see Davis v Goodsell, 6 AD3d 382, 383-384 [2004]). However, the Court of Appeals further stated:

“If plaintiff fails to demonstrate a jus- tifiable excuse, the statute says the court may’ dismiss the action—it does not say must’ (see, CPLR 3216 [e])— but this presupposes that plaintiff has tendered some excuse in response to the motion in an attempt to satisfy the statutory threshold. Although a court may possess residual discretion to deny a motion to dismiss when plaintiff tenders even an unjus- tifiable excuse, this discretion should be exercised sparingly to honor the balance struck by the generous statu- tory protections already built into CPLR 3216. Even such exceptional exercises of discretion, moreover, would be reviewable within the Appellate Division’s plenary discre- tionary authority. If plaintiff unjustifi- ably fails to comply with the 90-day requirement, knowing full well that the action can be saved simply by filing a note of issue but is subject to dismissal otherwise, the culpability for the resulting dismissal is squarely placed at the door of plaintiff or plaintiff ’s counsel. Were courts routinely to deny motions to dismiss even after plaintiff has ignored the 90-day period without an adequate excuse, the procedure established by CPLR 3216 would be rendered meaningless” (Baczkowski, 89 NY2d at 504-505).

In the instant case, in opposition to defendant’s motion to dismiss the com- plaint, plaintiff made no attempt to demonstrate the existence of an excuse, justifiable or otherwise, for plaintiff ’s fail- ure to comply with the 90-day notice. Nor did plaintiff make any attempt to demon- strate that it possessed a meritorious cause of action.

Accordingly, the order is reversed and defendant’s motion to dismiss the com- plaint pursuant to CPLR 3216 is granted. Pesce, P.J., Weston and Aliotta, JJ., con- cur.