Hillside Neurology Care P.C. v Travelers Ins. Co. (2006 NY Slip Op 50234(U))

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Hillside Neurology Care P.C. v Travelers Ins. Co.

2006 NY Slip Op 50234(U) [11 Misc 3d 127(A)]

Decided on February 24, 2006

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 24, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: SUAREZ, P.J., McCOOE, GANGEL-JACOB, JJ
570355/05.

HILLSIDE NEUROLOGY CARE P.C., assignee of CHRISTOPHER MANGAL, NY Plaintiff-Respondent,No.

against

TRAVELERS INSURANCE COMPANY, Defendant-Appellant.

Defendant appeals from an order of the Civil Court, Bronx County (Sharon Aarons, J.), dated April 5, 2005, which denied its motion to vacate the notice of trial and statement of readiness.

PER CURIAM:

Order (Sharon Aarons, J.), dated April 5, 2005, reversed, with $10 costs, and defendant's motion to vacate the notice of trial and statement of readiness granted.

A notice of trial should be vacated where it is based upon a statement of readiness that contains erroneous facts, such as that discovery has been completed (see Savino v Lewittes, 160 AD2d 176, 177 [1990]). Since it is clear that discovery was neither completed nor waived, and that there is an outstanding request for the deposition of the assignor's treating neurologist, plaintiff's notice
of trial based upon an inaccurate statement of readiness should have been vacated.

This constitutes the decision and order of the court.
Decision Date: February 24, 2006