Tahir Med., P.C. v Central Mut. Fire Ins. Co.

[*1] Tahir Med., P.C. v Central Mut. Fire Ins. Co. 2014 NY Slip Op 50092(U) Decided on January 31, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 31, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ
570003/14.

Tahir Medical, P.C., a/a/o Irene Petit-Frere, Plaintiff-Respondent,

against

Central Mutual Fire Insurance Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered February 4, 2013, which denied its motion to strike the action from the trial calendar and granted plaintiff's cross motion for a protective order.

Per Curiam.

Order (Gerald Lebovits, J.), entered February 4, 2013, reversed, with $10 costs, and defendant's motion to strike the action from the trial calendar granted and plaintiff's cross motion for a protective order denied.

Defendant's timely motion to strike the action from the trial calendar should have been granted, since plaintiff's August 15, 2011 certificate of readiness falsely stated that there were no outstanding discovery requests (see 22 NYCRR 208.17[c]; Nielsen v New York State Dormitory Auth., 84AD3d 519 [2011]; Savino v Lewittes, 160 AD2d 176 [1990], when in fact defendant's August 2, 2011 discovery demands remained outstanding.

Plaintiff's post-notice of trial cross motion for a protective order should have been denied. Plaintiff was barred from seeking such relief, where it previously filed a certificate of readiness, and failed to show that an unusual or unanticipated condition subsequently developed (see 22 NYCRR 208.17[d]; Capri Beachwear, Inc. v AAA Stretch, Inc., 49 AD2d 831 [1975]). Inasmuch as the case has been restored to a pre-notice of trial posture as a result of our disposition, plaintiff may, if so advised, renew its motion for a protective order in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 31, 2014