DiscoveryMarch 20, 2019

Fu-Qi Acupuncture, P.C. v Travelers Ins. Co., 2019 NY Slip Op 50273(U)(App. Term 2d Dept. 2019)

“Defendant’s timely motion to vacate the notice of trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contained the erroneous statement that discovery was complete or that it had been waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that plaintiff never appeared for a deposition in this action despite being served with a notice to take deposition upon oral examination, the notice of trial and certificate of readiness should be vacated (see Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]).”

Discovery, especially depositions, is potent because it can really increase the transactional costs of litigating all types of matters. The current fee structure of handling litigation on all sides makes discovery the exception and not the rule. An in house firm gets a flat rate to handle a file. If more cases go the deposition route, then more labor will be spent on motion practice and conducting depositions. An hourly firm would obviously salivate at this type of strategy but no insurance carrier really wants to pay $7,000-$10,000 in litigation expenses on a PIP case. So, from the defense side, this strategy just cannot work.

The Plaintiffs only lose money since they receive a stat attorney and usually some amount of principle and interest regardless of the amount of work put into a file. Assuming full discovery, their margins are hammered. Point is full court discovery cannot make sense in the current environment.