KOVACS SECURITY SYSTEMS INC v. Kovacs Security Systems, Inc. (2021)

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of Rea Belessis's motion seeking to vacate Kovacs Security Systems, Inc.'s notice of trial and strike the action from the trial calendar is granted.

The present action results from the consolidation ¹ of an action commenced by Kovacs Security Systems, Inc. (Kovacs) seeking to recover damages for breach of contract, with a small claims action commenced by Rea Belessis seeking to recover the principal sum of $4,000, representing the deposit she made to Kovacs upon signing that contract.

After Kovacs filed a notice of trial and a certificate of readiness, Belessis moved, among other things, pursuant to, in effect, Uniform Civil Rules for District Courts (22 NYCRR) § 212.17 (c), to vacate the notice of trial and to strike the action from the calendar. Belessis appeals, as limited by her brief, from so much of an order of the District Court as denied that branch of her motion.

The branch of Belessis's motion seeking to vacate the notice of trial and strike the action from the trial calendar should have been granted. Uniform Civil Rules for District Courts (22 NYCRR) § 212.17 (c) provides that a party may move to vacate a notice of trial within 20 days of its service and that “[t]he affidavit in support of the application must specify the reason the action is not entitled to be on the calendar.” Belessis's motion was timely (see CPLR 2103 [b] [2]) and the action was not ready for trial because no discovery had been conducted (see Uniform Civ Rules for Dist Cts [22 NYCRR] § 212.17 [c]; see also Tirado v Miller, 75 AD3d 153, 156 [2010]; Audiovox Corp. v Benyamini, 265 AD2d 135, 138 [2000]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of Belessis's motion seeking to vacate the notice of trial and strike the action from the trial calendar is granted.

FOOTNOTES

1.   The August 20, 2018 consolidation order retained the two separate captions with their respective index numbers.

GARGUILO, J.P., RUDERMAN and EMERSON, JJ., concur.