Acupuncture Solutions, P.C. v Lumbermans Mut. Cas. Co., 2015 NY Slip Op 51084(U)(App. Term 2d Dept. 2015)
At the end of the day, the insurance carrier received everything that it sought. The Court really should not have vacated plaintiff’s notice of trial.
“The fact that plaintiffs may have responded to the 2012 discovery demands in 2012 (a claim that defendant denies) did not entitle plaintiffs to ignore defendant’s July 16, 2013 demands, even if they were identical to the 2012 version, since they were now addressed to an amended complaint which contained new facts. Thus, the branch of defendant’s motion seeking to vacate the notice of trial should have been granted as it was timely (see Uniform Rules for the Dist Cts [22 NYCRR] § 212.17 [c]) and was based upon a certificate of readiness which contained the erroneous statement that discovery had been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]; see also Queens Chiropractic Management, P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”
A difference without a distinction.
