February 16, 2007

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

Headnote

The court considered a motion to vacate a notice of trial and certificate of readiness in a case involving a dispute over first-party no-fault benefits. The main issue decided was whether the defendant's motion to vacate the notice of trial and certificate of readiness should be granted, as there was an outstanding request for discovery and the plaintiff had filed a notice of trial claiming that discovery was complete. The court held that the defendant's motion to vacate the notice of trial and certificate of readiness should have been granted, as it was based on a certificate of readiness containing the erroneous statement that discovery was completed or waived. Therefore, the order denying the defendant's motion was reversed, and the defendant's motion to vacate the notice of trial and certificate of readiness was granted.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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