March 8, 2019

Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. (2019 NY Slip Op 50273(U))

Headnote

The relevant facts of the case involved Fu-Qi Acupuncture, P.C. suing Travelers Insurance Company to recover assigned no-fault benefits. Travelers Insurance Company served an answer in January 2015, accompanied by a notice to take deposition, and in February 2015, Fu-Qi Acupuncture, P.C. served a notice of trial and certificate of readiness. The main issue decided was whether Fu-Qi Acupuncture, P.C. had completed discovery, as represented in the certificate of readiness. The holding of the court was that the notice of trial and certificate of readiness should have been vacated, as Fu-Qi Acupuncture, P.C. had not completed discovery, despite the representation made in the certificate of readiness, and therefore, Travelers Insurance Company's motion to vacate the notice of trial and certificate of readiness was granted.

Reported in New York Official Reports at Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. (2019 NY Slip Op 50273(U))

Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. (2019 NY Slip Op 50273(U)) [*1]

Fu-Qi Acupuncture, P.C. v Travelers Ins. Co.

2019 NY Slip Op 50273(U) [62 Misc 3d 150(A)]

Decided on March 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 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
2016-301 K C

Fu-Qi Acupuncture, P.C., as Assignee of Gomez, Osiris, Respondent,
against
Travelers Insurance Company, Appellant.

Law Offices of Aloy O. Ibuzor (William P. Kleen of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 22, 2016. The order denied defendant’s motion to vacate a notice of trial and certificate of readiness.

ORDERED that the order 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 January 2015, was accompanied by a notice to take deposition upon oral examination. After plaintiff served a notice of trial and certificate of readiness in February 2015, defendant moved to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not complete. The Civil Court denied defendant’s unopposed 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]; 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 never appeared for a deposition in this action despite being served with a notice to take deposition upon oral examination, the notice of trial and certificate of readiness should be vacated (see Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]).

Accordingly, the order is reversed and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019