BSS Med., P.C. v Travelers Ins.

[*1] BSS Med., P.C. v Travelers Ins. 2021 NY Slip Op 50444(U) Decided on May 14, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-538 K C

BSS Medical, P.C., as Assignee of Leslie Inniss and Deshawn E. Daniels, Respondent,

against

Travelers Insurance, Appellant.

Law Office of Tina Newsome-Lee (William Kleen of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered February 25, 2019. The order, insofar as appealed from, denied defendant's motion to vacate a notice of trial and certificate of readiness.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion to vacate the notice of trial and certificate of readiness is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant's answer, served in February 2018, was accompanied by a demand for written interrogatories. Six days after defendant's discovery demand was served, plaintiff served a notice of trial and certificate of readiness. Defendant then moved, in February 2018, to vacate same, asserting that, contrary to plaintiff's representation, discovery was not complete. By order entered February 25, 2019, insofar as appealed from, the Civil Court denied defendant's motion.

Defendant's timely motion to vacate the notice of trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contained the erroneous statement that discovery was complete or that it had been waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Fu-Qi Acupuncture, P.C. v Travelers Ins. Co., 62 Misc 3d 150[A], 2019 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that plaintiff had not served responses to defendant's demand for written [*2]interrogatories despite being served with a demand for same, the notice of trial and certificate of readiness should have been vacated (see Fu-Qi Acupuncture, P.C., 62 Misc 3d 150[A], 2019 NY Slip Op 50273[U]; Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion to vacate the notice of trial and certificate of readiness is granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021