March 8, 2019

Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. (2019 NY Slip Op 50272(U))

Headnote

The court considered a motion to vacate a notice of trial and certificate of readiness in a first-party no-fault benefits case. The main issue decided was whether the defendant's motion to vacate the notice of trial and certificate of readiness should be granted. The court held that, for the same reasons stated in a related case (Fu-Qi Acupuncture, P.C., as Assignee of Gomez, Osiris v Travelers Ins. Co.), the order is reversed and defendant's motion to vacate the notice of trial and certificate of readiness is granted. Therefore, the order denying defendant's motion was reversed and the defendant'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 50272(U))

Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. (2019 NY Slip Op 50272(U)) [*1]

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

2019 NY Slip Op 50272(U) [62 Misc 3d 149(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2016-300 K C

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

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

For the reasons stated in Fu-Qi Acupuncture, P.C., as Assignee of Gomez, Osiris v Travelers Ins. Co. (__ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-301 K C], decided herewith), 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