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Allstate Social Work and Psychological Svcs, Pllc As Assignee of Joanne Harris v. Geico General Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 10, 2010

ALLSTATE SOCIAL WORK AND PSYCHOLOGICAL SVCS, PLLC AS ASSIGNEE OF JOANNE HARRIS,
APPELLANT,
v.
GEICO GENERAL INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered April 21, 2009.

Allstate Social Work & Psychological Svcs, PLLC v GEICO Gen. Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2010

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The order granted defendant's motion to vacate the notice of trial and strike the matter from the trial calendar, and directed plaintiff to respond to defendant's discovery demands.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served its answer in July 2004. The answer was accompanied by a demand for a verified bill of particulars, a demand for discovery and inspection, a demand for expert witness disclosure, and a notice to take deposition upon oral examination. After plaintiff served a notice of trial and certificate of readiness on September 16, 2008, defendant moved, on October 3, 2008, for an order vacating the notice of trial and certificate of readiness and striking the action from the trial calendar on the ground that discovery had not been completed. Defendant further requested that the Civil Court direct plaintiff to comply with all outstanding discovery demands. Plaintiff opposed the motion based, inter alia, upon laches. The Civil Court granted defendant's motion and directed plaintiff to serve verified responses to defendant's discovery demands within 60 days of the order. The instant appeal by plaintiff ensued.

Defendant's motion to vacate the notice of trial and strike the matter from the trial calendar was timely, and the affirmation in support of the motion accurately stated the reason that the action was not entitled to be on the trial calendar (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]), i.e., that there was outstanding discovery, an allegation which is undisputed by plaintiff. Consequently, the motion was properly granted since it was based upon a certificate of readiness which contains the erroneous statement that discovery had been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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 & 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]). Contrary to plaintiff's contention, the doctrine of laches does not warrant a denial of defendant's motion (see Kornblatt v Jaguar Cars, 172 AD2d 590 [1991]; Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]). Moreover, since plaintiff failed to timely challenge the propriety of defendant's discovery demands (see CPLR 3122 [a]; 3133 [a]), it must comply with the Civil Court's direction that it provide responses to defendant's discovery demands, except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: December 10, 2010

20101210

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