October 18, 2019

SMQ Med., P.C. v National Liab. & Fire Ins. (2019 NY Slip Op 51681(U))

https://www.beynensonlaw.com/case-law/smq-med-p-c-v-national-liab-fire-ins-2019-ny-slip-op-51681u/

Court: Appellate Term, Second Department
Decided: October 18, 2019
Citation: 2019 NY Slip Op 51681(U) · 65 Misc 3d 137(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

SMQ Med., P.C. v National Liab. & Fire Ins., 65 Misc 3d 137(A), 2019 NY Slip Op 51681(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 was granted because the readiness certificate incorrectly stated discovery was waived. The insurer served interrogatories with its answer. The provider later filed a notice of trial and certificate of readiness representing that discovery had been waived, and the insurer disputed that representation. Under 22 NYCRR 208.17 (c), the erroneous statement supported vacatur of the notice of trial. The Appellate Term, Second Department, also found no improvident exercise of discretion in denying the provider's request for a protective order. It affirmed the order granting the insurer's motion and denying the provider's cross motion, which also sought to strike affirmative defenses.

Reported in New York Official Reports at SMQ Med., P.C. v National Liab. & Fire Ins. (2019 NY Slip Op 51681(U))

[*1]

SMQ Med., P.C. v National Liab. & Fire Ins.

2019 NY Slip Op 51681(U) [65 Misc 3d 137(A)]

Decided on October 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 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
2016-2478 K C

SMQ Medical, P.C., as Assignee of Marsha Dean, Appellant,
against
National Liability & Fire Insurance, Respondent.

Gary Tsirelman, P.C. (Daria Klein of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Lisa Taranto-Fernandez of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered July 22, 2016. The order granted defendant’s motion to vacate a notice of trial and certificate of readiness and denied plaintiff’s cross motion for, among other things, a protective order and to strike defendant’s affirmative defenses.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant’s answer, served in June 2015, was accompanied by, among other things a demand for written interrogatories. After plaintiff served a notice of trial and certificate of readiness in September 2015, which stated that discovery was waived, defendant moved to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not waived. Plaintiff cross-moved for, among other things, a protective order and to strike defendant’s affirmative defenses. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

The court properly granted defendant’s timely motion to vacate the notice of trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]) since it was based upon a certificate of readiness which contains the erroneous statement that discovery was waived (see [*2]Savino v Lewittes, 160 AD2d 176 [1990]; 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 Dept, 2d & 11th Jud Dists 2008]). In addition, contrary to plaintiff’s contention, the court did not improvidently exercise its discretion when it denied plaintiff’s cross motion seeking a protective order. Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019

Cited in this decision

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.

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