GREAT WALL ACUPUNCTURE v. GENERAL ASSURANCE COMPANY

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Supreme Court, Appellate Term, New York.

GREAT WALL ACUPUNCTURE, P.C. as assignee of April Outlaw and Deborah Richards, Appellant, v. GENERAL ASSURANCE COMPANY, Respondent.

Decided: September 19, 2008

Present:  PESCE, P.J., RIOS and STEINHARDT, JJ. Zuppa Firm PLLC, Brooklyn (Raymond J. Zuppa, Jr. of counsel), for appellant. McDonnell & Adels, P.C., Garden City (Martha S. Henley of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 8, 2007.   The order, insofar as appealed from as limited by the brief, (1) granted the branch of defendant's motion seeking to vacate the notice of trial, (2) upon granting the branch of defendant's motion seeking to compel plaintiff to respond to defendant's supplemental demand for discovery and inspection by affording defendant an opportunity to “rephrase[ ]” its supplemental demand for discovery and inspection and “serve[ ]” its supplemental demand for discovery and inspection upon plaintiff, directed plaintiff, within 30 days of receiving same, to respond thereto and to thereafter appear for a deposition upon oral examination, and (3) denied plaintiff's cross motion for an order sanctioning defendant and defendant's counsel.

Appeal from so much of the order as directed plaintiff to respond to defendant's supplemental demand for discovery and inspection, which defendant was to rephrase and serve upon plaintiff, dismissed as plaintiff is not aggrieved thereby.

Order, insofar as appealed from and reviewed, affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant's answer was accompanied by a notice to take deposition upon oral examination.   After plaintiff served a notice of trial and certificate of readiness, defendant's newly substituted counsel moved to vacate same, asserting that, contrary to plaintiff's representation, discovery was not complete.   Defendant also sought to compel plaintiff to provide the documents demanded in defendant's supplemental demand for discovery and inspection which successor counsel served after the notice of trial and certificate of readiness had been served.   Plaintiff cross-moved for an order sanctioning defendant and defendant's successor counsel.

 The court granted the branch of defendant's motion seeking to vacate the notice of trial and certificate of readiness.   Although plaintiff contends that defendant's motion to vacate the notice of trial and certificate of readiness was untimely (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17[c] ), the record does not support such a conclusion.   While plaintiff's appellate brief asserts that its notice of trial and certificate of readiness was served on September 6, 2007, the record does not contain an affidavit of service so stating.   Rather, at most, the record shows that on September 10, 2007, defendant's counsel received the notice of trial and certificate of readiness.   As a result, since defendant's motion to vacate the notice of trial and certificate of readiness was served on October 1, 2007, it was timely (see General Construction Law § 25-a;  Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17[c] ).  A timely motion to vacate a notice of trial should be granted where it is based upon a certificate of readiness which contains the erroneous statement that discovery was completed or waived (see Savino v. Lewittes, 160 A.D.2d 176, 553 N.Y.S.2d 146 [1990];  Hillside Neurology Care P.C. v. Travelers Ins. Co., 11 Misc.3d 127(A), 2006 N.Y. Slip Op. 50234(U), 2006 WL 452425 [App. Term, 1st Dept. 2006] ).   Since it is undisputed that plaintiff never appeared for the deposition despite being served with a notice to take deposition upon oral examination, the court properly vacated plaintiff's notice of trial and certificate of readiness (see Ava Acupuncture, P.C. v. N.Y. Cent. Mut. Ins. Co., 14 Misc.3d 141(A), 2007 N.Y. Slip Op. 50358(U), 2007 WL 656573 [App. Term, 2d & 11th Jud. Dists. 2007] ).

In disposing of the branch of defendant's motion seeking to compel plaintiff to respond to its supplemental demand for discovery and inspection, the court afforded defendant an opportunity to “rephrase[ ],” in some unspecified manner, its supplemental demand for discovery and inspection and “serve[ ]” same upon plaintiff.   Inasmuch as no issue is raised with respect to this part of the order, we do not pass upon it and leave it undisturbed.   Accordingly, plaintiff is not aggrieved by the portion of the order which required it to respond to said demand (see CPLR 5511;  see also CPLR 3122 [a] ).   Further, since the contents of defendant's forthcoming “rephrased” supplemental demand for discovery and inspection are not part of the record on this appeal, we cannot pass upon the propriety of said demand.

 The court did not err in ordering plaintiff to appear for a deposition upon oral examination despite defendant's service of a demand for discovery and inspection and a supplemental demand for discovery and inspection.   Defendant is entitled to conduct such a deposition notwithstanding the fact that defendant also served demands for discovery and inspection of documents (see CPLR 3102;  Woods v. Alexander, 267 A.D.2d 1060, 1061, 700 N.Y.S.2d 343 [1999];  Iseman v. Delmar Med.-Dental Bldg., 113 A.D.2d 276, 495 N.Y.S.2d 747 [1985];  JMJ Contract Mgt. v. Ingersoll-Rand Co., 100 A.D.2d 291, 293, 475 N.Y.S.2d 528 [1984] ).

 Although plaintiff contends that the court erred in denying the cross motion for an order sanctioning defendant and defendant's counsel, in our opinion, the court providently exercised its discretion.   We remind plaintiff's counsel that “[f]rivolous conduct shall include the making of a frivolous motion for costs and sanctions” (Rules of the Chief Administrator [22 NYCRR] § 130-1.1).   We further caution plaintiff's counsel to refrain from including invective and ad hominem attacks in his papers.

Plaintiff's remaining contentions lack merit.