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Citywide Social Work and Psychological Services, Pllc As v. Autoone Insurance Company

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


July 7, 2011

CITYWIDE SOCIAL WORK AND PSYCHOLOGICAL SERVICES, PLLC AS
ASSIGNEE OF SONIA THOMAS,
APPELLANT,
v.
AUTOONE INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered September 10, 2009.

Citywide Social Work & Psychological Servs., PLLC v Autoone 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2011

PRESENT: WESTON, J.P., PESCE and RIOS, JJ

The order, insofar as appealed from, denied, as premature, plaintiff's cross motion for summary judgment and granted the branch of defendant's motion seeking to vacate the notice of trial and strike the matter from the trial calendar and the branch of defendant's motion seeking to dismiss the complaint due to plaintiff's failure to comply with discovery demands or to compel such discovery, to the extent of directing plaintiff to respond to defendant's discovery demands.

ORDERED that the order, insofar as appealed from, is affirmed, with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered December 11, 2008, denied a motion by plaintiff for summary judgment as premature and granted a cross motion by defendant to the extent of compelling plaintiff to comply with defendant's discovery demands within 30 days of service of the order with notice of entry. Although defendant served the order with notice of entry on January 5, 2009, two days later, on January 7, 2009, plaintiff filed a notice of trial and certificate of readiness, which it mailed to defendant on January 27, 2009. Defendant timely moved, among other things, to vacate the notice of trial and strike the action from the trial calendar, to compel plaintiff to meaningfully respond to its discovery demands, and to produce plaintiff's purported owners for an examination before trial. Plaintiff cross-moved for summary judgment. By order entered September 10, 2009, the Civil Court denied, as premature, plaintiff's cross motion for summary judgment and granted defendant's motion to the extent of vacating the notice of trial and striking the matter from the trial calendar, and directing plaintiff to provide defendant with "written discovery including answering verified written interrogatories and combined demands (such as tax returns and management/lease agreements)." The order further directed plaintiff to produce its owners for an examination before trial within 45 days after service of the written discovery. This appeal by plaintiff ensued, and we affirm.

It is undisputed that the discovery demanded was not provided by plaintiff. Because the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant's motion seeking to vacate the notice of trial and strike the matter from the trial calendar (see Allstate Social Work & Psychological Svcs., PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). As discovery was outstanding, the Civil Court also properly denied, as premature, plaintiff's cross motion for summary judgment. Moreover, since the record indicates that plaintiff made no attempt in the Civil Court to challenge the propriety of defendant's discovery demands (see CPLR 3103, 3122 [a]; 3133 [a]), plaintiff must comply with the Civil Court's direction that it provide responses to defendant's discovery demands.

Weston, J.P., Pesce and Rios, JJ., concur.

Decision Date: July 07, 2011

20110707

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