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

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.