May 14, 2021

BSS Med., P.C. v Travelers Ins. (2021 NY Slip Op 50444(U))

Headnote

The main issue in the case of BSS Medical, P.C. v Travelers Insurance was whether the defendant's motion to vacate a notice of trial and certificate of readiness should have been granted. In this action to recover assigned first-party no-fault benefits, the defendant argued that discovery was not complete despite the plaintiff's representation that it was. The Civil Court had previously denied the defendant's motion, but the Appellate Term, Second Department reversed that decision. The Appellate Court held that the notice of trial and certificate of readiness should have been vacated, as it was undisputed that the plaintiff had not served responses to the defendant's demand for written interrogatories, despite being served with a demand for the same. Therefore, the Appellate Court granted the defendant's motion to vacate the notice of trial and certificate of readiness. In summary, the court considered the lack of completion of discovery, the defendant's motion to vacate the notice of trial and certificate of readiness, and the plaintiff's failure to serve responses to the defendant's discovery demand. The main issue decided was whether the defendant's motion to vacate should have been granted, and the holding of the case was that the notice of trial and certificate of readiness should have been vacated, and the defendant's motion was granted.

Reported in New York Official Reports at BSS Med., P.C. v Travelers Ins. (2021 NY Slip Op 50444(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

BSS Medical, P.C., as Assignee of Leslie Inniss and Deshawn E. Daniels, Respondent,
against
Travelers Insurance, Appellant.

Law Office of Tina Newsome-Lee (William Kleen of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered February 25, 2019. The order, insofar as appealed from, denied defendant’s motion to vacate a notice of trial and certificate of readiness.

ORDERED that the order, insofar as appealed from, 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 February 2018, was accompanied by a demand for written interrogatories. Six days after defendant’s discovery demand was served, plaintiff served a notice of trial and certificate of readiness. Defendant then moved, in February 2018, to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not complete. By order entered February 25, 2019, insofar as appealed from, the Civil Court denied defendant’s 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]; 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]; 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 had not served responses to defendant’s demand for written [*2]interrogatories despite being served with a demand for same, the notice of trial and certificate of readiness should have been vacated (see Fu-Qi Acupuncture, P.C., 62 Misc 3d 150[A], 2019 NY Slip Op 50273[U]; Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]).

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021