Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co.

[*1] Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co. 2007 NY Slip Op 50358(U) [14 Misc 3d 141(A)] Decided on February 16, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 16, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-327 K C.

Ava Acupuncture, P.C. a/a/o Marie Pokie, Fausto Alvarez, Michael Monopremier, Omesh Persaud And Jose Turcios, Respondent,

against

NY Central Mutual Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 19, 2005. The order denied defendant's motion to vacate the notice of trial and certificate of readiness.

Order reversed without costs and defendant's motion to vacate the notice of trial and certificate of readiness granted.

In this action to recover assigned first-party no-fault benefits, defendant served plaintiff with a notice to take the deposition of plaintiff, as well as others. After plaintiff filed a notice of trial and certificate of readiness, defendant moved to vacate the notice of trial and certificate of readiness, asserting that, contrary to plaintiff's representation, discovery was not complete. Although plaintiff did not oppose defendant's motion, the
court below denied defendant's motion, noting that the type of discovery sought by defendant was not within "the purview of plaintiff."

Defendant's motion to vacate the notice of trial and certificate of readiness should have been granted. It is undisputed that there is an outstanding request for discovery. A motion to vacate a notice of trial should be granted where, as in the instant matter, it is based upon a certificate of readiness which contains the erroneous statement that discovery was completed or waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept]).

Pesce, P.J., Weston Patterson and Golia, JJ., concur. [*2]
Decision Date: February 16, 2007