Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2010 NY Slip Op 51963(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 19, 2009. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to vacate the notice of trial, sua sponte compelled plaintiff to respond to defendant’s discovery demands, implicitly denied the branch of plaintiff’s cross motion seeking a protective order, and denied plaintiff’s motion for summary judgment.

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, compelled plaintiff to respond to defendant’s discovery demands is treated as an application for leave to appeal from that portion of the order,
and leave to appeal from that portion of the order is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order, insofar as appealed from, is affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served an answer which was accompanied by discovery demands. Although plaintiff had not responded to said demands, it filed a notice of trial and a certificate of readiness. A month thereafter, defendant moved to vacate the notice of trial on the ground that the certificate of readiness contained erroneous statements that discovery had been completed. Plaintiff cross-moved for, among other things, a protective order, and subsequently moved for summary judgment. The Civil Court granted defendant’s motion and, sua sponte, compelled plaintiff to respond to defendant’s discovery demands, thereby implicitly denying the branch of plaintiff’s cross motion seeking a protective order. The court also denied plaintiff’s motion for summary judgment. The instant appeal by plaintiff ensued.

Defendant’s timely motion to vacate the notice of trial (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]) was properly granted inasmuch as the certificate of readiness contained erroneous statements that discovery had been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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 & 11th Jud Dists 2008]; Great Wall [*2]Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).

CPLR 3103 (a) empowers a court to issue a protective order “at any time.” The failure of a party to promptly move for a protective order after receipt of discovery demands, however, is more likely to be resolved against the movant who provided no objections and was tardy with the motion (see B.Y. M.D., P.C. v Lancer Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50493[U] [App Term, 9th & 10th Jud Dists 2010]; Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:3). The issuance of a protective order is within the broad discretion of the court and dilatory conduct can result in a court’s refusal to exercise its powers under CPLR 3103. Since plaintiff did not proffer a reasonable excuse for its delay in moving for a protective order, the Civil Court did not improvidently exercise its discretion when it denied the branch of plaintiff’s cross motion seeking such relief.

Plaintiff’s motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the documents submitted in support of plaintiff’s motion were admissible pursuant to CPLR 4518. Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment (see Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50065[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Plaintiff’s remaining contentions are unpreserved for appellate review or lack merit. Accordingly, the order is affirmed.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010