May 14, 2021

BSS Med., P.C. v Travelers Ins. (2021 NY Slip Op 50444(U))

https://www.beynensonlaw.com/case-law/bss-med-p-c-v-travelers-ins-2021-ny-slip-op-50444u/

Court: Appellate Term, Second Department
Decided: May 14, 2021
Citation: 2021 NY Slip Op 50444(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

BSS Med., P.C. v Travelers Ins., 2021 NY Slip Op 50444(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's notice of trial and certificate of readiness were vacated because its interrogatory responses remained outstanding. The provider served those papers six days after the insurer served its answer and demand for written interrogatories. The insurer timely moved to vacate under 22 NYCRR 208.17 (c), disputing the representation that discovery was complete. It was undisputed that the provider had not answered the interrogatories. Because the certificate erroneously stated that discovery was complete or waived, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion.

Reported in New York Official Reports at BSS Med., P.C. v Travelers Ins. (2021 NY Slip Op 50444(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

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

Cited in this decision

A label shows how this decision treated the case it cites.

Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. (2019 NY Slip Op 50273(U)) FollowedThe insurer's timely motion to vacate the notice of trial succeeded because the provider's certificate incorrectly stated that discovery was complete.
Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co. (2009 NY Slip Op 51073(U)) FollowedThe insurer's timely motion to vacate the notice of trial was warranted because the provider incorrectly certified that discovery was complete.

Similar decisions

SMQ Med., P.C. v National Liab. & Fire Ins. (2019 NY Slip Op 51681(U))The insurer's timely motion to vacate the notice of trial was granted because the readiness certificate incorrectly stated discovery was waived.
Accurate Med., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51998(U))The insurer's motion to vacate the notice of trial was denied after it failed to pursue a deposition or show a need for one.
BSS Med., P.C. v Metropolitan Prop. & Cas. Ins. (2021 NY Slip Op 51255(U))A summary judgment motion served by mail is made upon mailing for purposes of CPLR 3212 (a)'s 120-day deadline.
Nassau Chiropractic Servs., P.C. v Travelers Indem. Co. (2022 NY Slip Op 50933(U))The insurer established timely mailing of EUO notices and the denial, and the provider's failure to appear for the EUOs. Office-practice affidavits proved mailing, and affirmations from attorneys present to conduct the EUOs established the nonappearances.
A.M. Med. Servs., P.C. v Travelers Ins. Co. (2020 NY Slip Op 50459(U))The provider's statutory interest was tolled during its unreasonable delay between discovery responses and filing a notice of trial.