FU QI ACUPUNCTURE v. TRAVELERS INSURANCE COMPANY (2019)

Supreme Court, Appellate Term, New York.

FU-QI ACUPUNCTURE, P.C., as Assignee of Gomez, Osiris, Respondent, v. TRAVELERS INSURANCE COMPANY, Appellant.

2016-300 K C

Decided: March 08, 2019

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ

Law Office of Aloy O. Ibuzor (William P. Kleen of counsel), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 22, 2016. The order denied defendant's motion to vacate a notice of trial and certificate of readiness.

ORDERED that the order is reversed, with $ 30 costs, and defendant's motion to vacate the notice of trial and certificate of readiness is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant's answer, served in January 2015, was accompanied by a notice to take deposition upon oral examination. After plaintiff served a notice of trial and certificate of readiness in February 2015, defendant moved to vacate same, asserting that, contrary to plaintiff's representation, discovery was not complete. The Civil Court denied defendant's unopposed motion.

For the reasons stated in Fu-Qi Acupuncture, P.C., as Assignee of Gomez, Osiris v. Travelers Ins. Co. (––– Misc 3d ––––, 2019 NY Slip Op –––– [appeal No. 2016-301 K C], decided herewith), the order is reversed and defendant's motion to vacate the notice of trial and certificate of readiness is granted.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

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