February 16, 2007

Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co. (2007 NY Slip Op 50358(U))

https://www.beynensonlaw.com/case-law/ava-acupuncture-p-c-v-ny-cent-mut-ins-co-2007-ny-slip-op-50358u/

Court: Appellate Term, Second Department
Decided: February 16, 2007
Citation: 2007 NY Slip Op 50358(U) · 14 Misc 3d 141(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co., 14 Misc 3d 141(A), 2007 NY Slip Op 50358(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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.

A notice of trial should be vacated when the certificate of readiness erroneously states that discovery was completed or waived. In this assigned no-fault benefits action, the insurer served deposition notices for the provider and others. The provider then filed a notice of trial and certificate of readiness despite an outstanding discovery request. The insurer's motion to vacate was unopposed, but the Civil Court denied it because the requested discovery was outside the provider's purview. The Appellate Term, Second Department, reversed and granted the insurer's motion to vacate the notice of trial and certificate of readiness, relying on the undisputed outstanding discovery.

Reported in New York Official Reports at Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co. (2007 NY Slip Op 50358(U))

[*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This opinion is uncorrected and will not be published in the printed Official Reports.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

Cited by

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

AVA Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51756(U))The provider's failure to answer discovery or oppose the insurer's motion supported striking its complaint under CPLR 3126 (3).
Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50233(U))An unvacated default declaratory order barring no-fault benefits is a final determination that can preclude a provider's action under res judicata.
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.
AVA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52256(U))The insurer failed to prove mailing of IME requests and therefore failed to establish tolling or timely denial of the provider's claims.
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.