March 8, 2019

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

https://www.beynensonlaw.com/case-law/fu-qi-acupuncture-p-c-v-travelers-ins-co-2019-ny-slip-op-50273u/

Court: Appellate Term, Second Department
Decided: March 8, 2019
Citation: 2019 NY Slip Op 50273(U) · 62 Misc 3d 150(A)
Posture: Other motion
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Discovery and procedure

Cite as

Fu-Qi Acupuncture, P.C. v Travelers Ins. Co., 62 Misc 3d 150(A), 2019 NY Slip Op 50273(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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.

The insurer's timely motion to vacate the notice of trial succeeded because the provider's certificate incorrectly stated that discovery was complete. The insurer served a deposition notice with its answer, but the provider never appeared for a deposition. The provider nevertheless filed a notice of trial and certificate of readiness, and the Civil Court denied the insurer's unopposed motion to vacate them. Under 22 NYCRR 208.17 (c), the timely motion should have been granted because the certificate erroneously represented that discovery was complete or waived. The Appellate Term, Second Department, reversed the order and granted the insurer's motion to vacate both documents.

Reported in New York Official Reports at 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This opinion is uncorrected and will not be published in the printed Official Reports.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

Cited in this decision

A label shows how this decision treated the case it cites.

Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co. (2009 NY Slip Op 51073(U)) FollowedThe insurer's timely motion to vacate the notice of trial was warranted because the provider incorrectly certified that discovery was complete.

Cited by

A label shows how the later decision treated this one.

BSS Med., P.C. v Travelers Ins. (2021 NY Slip Op 50444(U)) FollowedThe provider's notice of trial and certificate of readiness were vacated because its interrogatory responses remained outstanding.

Similar decisions

Accurate Med., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51998(U))The insurer's motion to vacate the notice of trial was denied after it failed to pursue a deposition or show a need for one.
SMQ Med., P.C. v National Liab. & Fire Ins. (2019 NY Slip Op 51681(U))The insurer's timely motion to vacate the notice of trial was granted because the readiness certificate incorrectly stated discovery was waived.
Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co. (2007 NY Slip Op 50358(U))A notice of trial should be vacated when the certificate of readiness erroneously states that discovery was completed or waived.
Charles Deng Acupuncture, P.C. v Travelers Ins. Co. (2020 NY Slip Op 51320(U))The insurer proved timely EUO notices and denials and the assignor's nonappearance, while the provider raised no triable issue.
Acupuncture Now, P.C. v Travelers Ins. Co. (2019 NY Slip Op 51255(U))EUO requests that omit the time and place are delay letters and do not establish timely EUO scheduling.