October 18, 2019
SMQ Med., P.C. v National Liab. & Fire Ins. (2019 NY Slip Op 51681(U))
https://www.beynensonlaw.com/case-law/smq-med-p-c-v-national-liab-fire-ins-2019-ny-slip-op-51681u/
- Decided
- October 18, 2019
- Citation
- 2019 NY Slip Op 51681(U) · 65 Misc 3d 137(A)
- Posture
- Other motion
- Outcome
- Insurer prevailed
- Issues
- Discovery and procedure
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Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at SMQ Med., P.C. v National Liab. & Fire Ins. (2019 NY Slip Op 51681(U))
| SMQ Med., P.C. v National Liab. & Fire Ins. |
| 2019 NY Slip Op 51681(U) [65 Misc 3d 137(A)] |
| Decided on October 18, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2478 K C
against
National Liability & Fire Insurance, Respondent.
Gary Tsirelman, P.C. (Daria Klein of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Lisa Taranto-Fernandez of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered July 22, 2016. The order granted defendant’s motion to vacate a notice of trial and certificate of readiness and denied plaintiff’s cross motion for, among other things, a protective order and to strike defendant’s affirmative defenses.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant’s answer, served in June 2015, was accompanied by, among other things a demand for written interrogatories. After plaintiff served a notice of trial and certificate of readiness in September 2015, which stated that discovery was waived, defendant moved to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not waived. Plaintiff cross-moved for, among other things, a protective order and to strike defendant’s affirmative defenses. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion.
The court properly granted defendant’s timely motion to vacate the notice of trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]) since it was based upon a certificate of readiness which contains the erroneous statement that discovery was waived (see [*2]Savino v Lewittes, 160 AD2d 176 [1990]; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). In addition, contrary to plaintiff’s contention, the court did not improvidently exercise its discretion when it denied plaintiff’s cross motion seeking a protective order. Plaintiff’s remaining contention lacks merit.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019
Cited in this decision
- First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51963(U))The provider's notice of trial was properly vacated because its certificate of readiness incorrectly stated that discovery was complete or waived.
Similar decisions
- BSS Med., P.C. v Travelers Ins. (2021 NY Slip Op 50444(U))The provider's notice of trial and certificate of readiness were vacated because its interrogatory responses remained outstanding.
- Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. (2019 NY Slip Op 50273(U))The insurer's timely motion to vacate the notice of trial succeeded because the provider's certificate incorrectly stated that discovery was complete.
- Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51645(U))The provider's notice of trial was vacated because discovery remained outstanding, and its untimely discovery objections required production.
- Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co. (2009 NY Slip Op 51073(U))The insurer's timely motion to vacate the notice of trial was warranted because the provider incorrectly certified that discovery was complete.
- Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co. (2012 NY Slip Op 50152(U))The insurer's specific reasons to question the provider's licensing compliance supported discovery of its financial and tax records.