Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co., 2020 NY Slip Op 50238(U)(App. Term 2d Dept. 2020)
“[A] court ‘ha[s] no power whatsoever’ to dismiss an action for gross laches or failure to prosecute in the absence of a 90-day demand to serve and file a [notice of trial]” (Arroyo v Board of Educ. of City of NY, 110 AD3d 17, 20 [2013], quoting Hodge v New York City Tr. Auth., 273 AD2d 42, 43 [2000]; see also Chase v Scavuzzo, 87 NY2d 228 [1995]; General Assur. Co. v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and “the doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216 (b)” (Arroyo, 110 AD3d at 20; see also Montalvo v Mumpus Restorations, Inc., 110 AD3d 1045 [2013]). As defendant does not claim to have served a demand pursuant to CPLR 3216, it was error for the Civil Court to grant the branch of defendant’s motion seeking to dismiss the complaint based on laches.
