SMQ MEDICAL v. NATIONAL LIABILITY FIRE INSURANCE (2019)

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant's answer, served in June 2015, was accompanied by, among other things a demand for written interrogatories. After plaintiff served a notice of trial and certificate of readiness in September 2015, which stated that discovery was waived, defendant moved to vacate same, asserting that, contrary to plaintiff's representation, discovery was not waived. Plaintiff cross-moved for, among other things, a protective order and to strike defendant's affirmative defenses. The Civil Court granted defendant's motion and denied plaintiff's cross motion.

The court properly granted defendant's timely motion to vacate the notice of trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c] ) since it was based upon a certificate of readiness which contains the erroneous statement that discovery was waived (see Savino v. Lewittes, 160 AD2d 176 [1990]; 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 Dept, 2d & 11th Jud Dists 2008] ). In addition, contrary to plaintiff's contention, the court did not improvidently exercise its discretion when it denied plaintiff's cross motion seeking a protective order. Plaintiff's remaining contention lacks merit.

Accordingly, the order is affirmed.

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