First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51963(U))

First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co.

2008 NY Slip Op 51963(U) [21 Misc 3d 128(A)]

Decided on September 29, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.

First Aid Occupational Therapy, PLLC as assignee of Morris Dennis, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered July 26, 2007. The order granted defendant's motion to vacate the notice of trial and to direct plaintiff to respond to defendant's discovery demands and appear for an examination before trial with respect to defendant's defense based upon plaintiff's alleged fraudulent incorporation.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served a notice of examination before trial and a notice for discovery and inspection. Thereafter, defendant moved to vacate the notice of trial and certificate of readiness filed by plaintiff, asserting that, contrary to plaintiff's representation, discovery was not complete. The court granted defendant's motion and directed plaintiff to provide complete and meaningful responses to defendant's discovery demands with respect to defendant's defense of fraudulent incorporation and to appear for an examination before trial (EBT) with respect to said defense. This appeal by plaintiff ensued.

Vacatur of the notice of trial and certificate of readiness was properly granted since the certificate of readiness contained the erroneous statement that discovery was completed or waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50358[U] [App Term, 2d & 11th Jud Dists 2007]; 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]). Moreover, contrary to plaintiff's contention, defendant is not precluded from raising a defense based upon plaintiff's allegedly fraudulent incorporation [*2](see Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]). In addition, defendant is entitled to conduct an EBT of plaintiff notwithstanding the fact that defendant also served a demand for discovery and inspection of documents (see Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 293 [1984]).

Defendant's remaining contentions lack merit. Accordingly, the order is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 29, 2008