Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co. (2009 NY Slip Op 51073(U))

Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co.

2009 NY Slip Op 51073(U) [23 Misc 3d 142(A)]

Decided on May 27, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.

Queens Chiropractic Management, P.C. a/a/o MOHAMMAD SERAZ ISLAM, Respondent,

against

Country Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 20, 2007. The order denied defendant's motion to vacate the notice of trial and certificate of readiness.

Order reversed without costs and defendant's motion to vacate the notice of trial and certificate of readiness granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant's answer, served in September 2005, was accompanied by notices to take deposition upon oral examination and various other discovery demands. After plaintiff served a notice of trial and certificate of readiness in October 2007, defendant moved
to vacate same, asserting that, contrary to plaintiff's representation, discovery was not complete. The Civil Court denied defendant's motion on the ground of laches due to the passage of time between the service of defendant's discovery demands and the date on which plaintiff served its notice of trial. This appeal by defendant ensued.

Defendant's timely motion to vacate the notice of trial (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contains the erroneous statement that discovery was completed or waived (see Savino v Lewittes, 160 AD2d 176 [1990]; First Aid Occupational [*2]Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept 2006]). 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, or complied with the other discovery demands, the notice of trial and certificate of readiness should be vacated (see Great Wall Acupuncture, P.C., 21 Misc 3d at 47).

We further note that the doctrine of laches does not warrant denial of defendant's motion (see Kornblatt v Jaguar Cars, 172 AD2d 590 [1991]).