CPLR 3216 again

Restoration Sports & Spine v Geico Ins. Co., 2014 NY Slip Op 51729(U)(App. Term 2d Dept. 2014)

“Plaintiffs commenced this action to recover assigned first-party no-fault benefits in September 2008. On June 25, 2011, defendant served a 90-day notice pursuant to CPLR 3216 (b) (3). Plaintiffs did not file a notice of trial, move to vacate the 90-day notice, or move to extend the 90 days. In April 2012, defendant moved to dismiss the complaint pursuant to CPLR 3216. The Civil Court denied defendant’s motion.”

“Except under circumstances not presented 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 ; Belson v Dix Hills Air Conditioning, Inc., 119 AD3d 623 ; Davis v Goodsell, 6 AD3d 382, 384 ;Lama v Mohammad, 29 Misc 3d 68 ). Here, plaintiffs’ attorney’s conclusory statement that bills had been submitted to defendant and had not been paid within 30 days of their submission was insufficient to demonstrate the merit of plaintiffs’ case (see Sortino v Fisher, 20 AD2d 25 ; Lama, 29 Misc 3d 68;Comeau v McClacken, 5 Misc 3d 134, 2004 NY Slip Op 51455 ). Moreover, plaintiff did not commence this action upon a verified complaint (CPLR 105 ).”

CPLR 3216 at work…

Understanding CPLR 3216: Dismissal for Failure to Prosecute

CPLR 3216 provides the statutory framework for dismissing actions when plaintiffs fail to demonstrate diligence in prosecuting their claims. The statute authorizes dismissal for neglect to prosecute where a plaintiff fails to take action for more than one year, subject to specific procedural requirements that protect both parties’ interests.

The 90-Day Notice Requirement

Before obtaining dismissal under CPLR 3216(b)(3), the moving party must serve a written demand requiring the plaintiff to resume prosecution and file a note of issue within 90 days. This notice serves as both a warning and an opportunity to cure. The notice must clearly state that failure to comply will result in dismissal. Courts strictly construe this requirement, and failure to provide proper notice defeats the motion regardless of the plaintiff’s actual delay.

In Restoration Sports, defendant Geico served its 90-day notice in June 2011—nearly three years after the September 2008 filing. Plaintiffs took no responsive action: no note of issue was filed, no motion to vacate was made, and no extension was requested. This complete inaction following proper notice formed the procedural foundation for defendant’s dismissal motion.

The Two-Prong Standard: Justifiable Excuse and Meritorious Cause

To defeat a CPLR 3216 motion after proper notice, plaintiffs must satisfy a dual burden. First, they must demonstrate justifiable excuse for the delay in prosecution. Second, they must establish a meritorious cause of action. Both prongs are mandatory; failure on either ground warrants dismissal.

Justifiable excuse requires more than generalized statements about pending discovery or negotiations. Courts require specific facts explaining the delay and demonstrating reasonable diligence under the circumstances. Law office failure rarely qualifies as justifiable excuse absent extraordinary circumstances.

The meritorious cause requirement demands evidentiary support beyond conclusory allegations. In no-fault cases, this typically requires verified billing, proof of mailing to the carrier, and evidence establishing timely submission. Mere attorney assertions prove insufficient.

Restoration Sports Analysis: Deficient Opposition

The Appellate Term reversed precisely because plaintiffs failed both prongs. Their attorney’s conclusory statement that bills were submitted and unpaid within 30 days lacked evidentiary support. The absence of a verified complaint compounded this deficiency—CPLR 105(u) requires verification in actions to recover assigned no-fault benefits.

More critically, plaintiffs offered no justification for their three-year delay following commencement or their complete non-response to the 90-day notice. This silence proved fatal.

Practical Implications for No-Fault Practitioners

CPLR 3216 poses particular risks in no-fault litigation where providers often file hundreds of claims and may lack sophisticated case management systems. High-volume practices must implement calendaring protocols to monitor aging cases and respond immediately to 90-day notices.

When served with a CPLR 3216 notice, providers cannot simply file a note of issue without ensuring the case is ready. Instead, they should assess whether discovery remains outstanding, evaluate settlement prospects, and if necessary, move for relief from the notice requirement with specific factual support.

Defense counsel should audit aged cases quarterly to identify dismissal candidates. Serving 90-day notices systematically reduces open inventory and pressures plaintiffs to either prosecute diligently or abandon weak claims. Post-notice, defendants must calendar the deadline and move promptly once the 90 days expire.

Related Articles

• Combating Litigation Delay Tactics in New York No-Fault Insurance Cases
• Single Motion Rule and Statute of Limitations: Long Island & NYC Legal Guide
• A party that really blew it gets not only a second but a third chance to correct his mistake
• How to Talk to a Judge in New York: What to Say, What to Avoid, and How to Present Yourself
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2014 post, CPLR 3216 has undergone several amendments affecting dismissal procedures and timeline requirements for abandoned actions. Additionally, court interpretations of the “justifiable excuse” and “meritorious cause of action” standards in no-fault cases may have evolved through subsequent appellate decisions. Practitioners should verify current CPLR 3216 provisions and recent case law developments when addressing motions to dismiss for failure to prosecute.