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3404 and 3216 collide – well somewhatMay 5, 2012

“Plaintiff commenced this breach of contract action in 1998 to recover no-fault benefits for medical treatments she had received from healthcare providers for injuries she had sustained as a result of a motor vehicle accident. In July 1999, plaintiff withdrew her notice of inquest, and the case was apparently marked off the calendar. The parties then proceeded with discovery through May 2001. In April 2010, defendant served plaintiff with a 90-day notice. Plaintiff then attempted, within the 90-day period, to file a notice of trial.”

“Defendant’s cross motion to dismiss the complaint invoked CPLR 3404. However, as CPLR 3404 applies solely to cases in the Supreme or County Courts (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]), the Civil Court properly denied defendant’s CPLR 3404 cross motion to dismiss. We note that were the cross motion to be deemed as having been brought pursuant to CPLR 3216 seeking to dismiss for want of prosecution, it would have been premature [*2]since it was made prior to the expiration of the 90-day period. Thus, defendant’s cross motion was properly denied.

Two things seem apparent here.

1) The Court seems to be saying that although CPLR 3404 does not apply, one could use the 3216 procedure and probably prevail since a Plaintiff would never be able to make a showing that there was a reasonable excuse for its failure to promptly restore.

2) How much is the interest on this case?  12 years of compounded 24% per annum interest?

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