DECISION AND ORDER The Defendant moves for an Order pursuant to 22 NYCRR 208.17 (c) and CPLR 3126 striking the Plaintiff’s Notice of Trial and dismissing the Complaint on the ground that pre-trial discovery has not been completed or in the alternative, striking the Notice of Trial and directing the Plaintiff to comply the Defendant’s written discovery demands and to appear for an examination before trial by a date certain, together with other relief the Court deems just. On November 28, 2018, the Defendant served the Plaintiff its Verified Answer, Combined Demands, Notice of Examination Before Trial, Notice to Preserve, Notice to Admit and Demand for Verified Written Interrogatories. On July 15, 2019, the Plaintiff served its Verified Interrogatory Responses, but did not appear for the examination before trial. Thereafter, the Plaintiff filed its Notice of Trial and Certificate of Readiness on August 5, 2019. The Defendant alleges that the Notice of Trial should be stricken because the Plaintiff’s responses to the interrogatories are inadequate and the Plaintiff failed to appear for the examination before trial. In Opposition, the Plaintiff argues that the motion is moot because discovery is complete and the “Defendant cannot now say that Plaintiff erroneously certified the case as ready for trial.” Significantly, the Plaintiff did not address whether the Plaintiff appeared for the examination before trial nor offered an excuse attributable to the Defendant’s negligence for the failure of the Plaintiff to appear for the examination before trial. 22 NYCRR 208.17 provides that a Notice of Trial shall be accompanied by a Certificate of Readiness which shall state, among other things, that discovery proceedings are complete, that there are no outstanding requests for discovery, and that the case is ready for trial. See 22 NYCRR 208.17 (a) and (f). It is well-settled that a Notice of Trial should be vacated when it is based upon a Certificate of Readiness which contains an erroneous fact such as that discovery has been completed. Jamaica Dedicated Medical Care v. Allstate Ins. Co., 41 Misc3d 131(A) (Sup. Ct. App. Term, 2nd Dept. 2013); VE Medical Care v. Auto One Ins. Co., 35 Misc3d 127(A) (Sup. Ct. App. Term, 2nd Dept. 2012). Contrary to the Plaintiff’s contentions, it is of no consequence if the discovery is complete at the time the motion to strike is made, as the only consideration should be whether the Certificate of Readiness contains an erroneous fact. The Defendant is entitled to depose the Plaintiff. Thus, discovery is not complete and the case is not ready for trial. Given that the Certificate of Readiness contains erroneous statements, it must be vacated. Moreover, the Plaintiff failed to establish that it timely objected to the propriety of the Defendant’s discovery demands pursuant to CPLR 3122 and CPLR 3133. As such, the Plaintiff must comply with the Defendant’s demands, except as to matters which are privileged or palpably improper. Allstate Social Work and Psychological Svcs, PLLC v. Geico General, 29 Misc.3d 142(A)(Sup. Ct. App. Term, 2nd Dept. 2010). Accordingly, the Defendant’s motion is granted and it is hereby Ordered, that the Notice of Trial dated August 5, 2019 is vacated, and it is Ordered, that the Plaintiff provide more complete responses to the Defendant’s Discovery Demands dated November 27, 2018 by September 1, 2020, and it is further Ordered, that Defendant shall notice the Plaintiff to appear and the Plaintiff is directed to appear for an examination before trial to be conducted in accordance with social distancing guidelines on a date that is mutually acceptable to the parties. Dated: July 30, 2020
