Not So Readiness

NO-FAULT – DISCOVERY – FRAUDULENT INCORPORATION DEFENSE – PLAINTIFF EBT
First Aid Occupational Therapy, PLLC a/a/o Morris Dennis v. State Farm Mut. Auto. Ins. Co.
(App. Term, 2nd Dept., decided 9/29/2008)

Although State Farm had served an EBT notice and notice for discovery and inspection of documents, plaintiff medical provider filed a notice of trial and certificate of readiness. State Farm moved to vacate the notice of trial and certificate of readiness, contending that discovery was not complete, and Kings Civil granted State Farm's motion, directing plaintiff to provide "complete and meaningful responses" to State Farm's discovery demands with respect to State Farm's defense of fraudulent incorporation and to appear for an EBT with respect to that defense.

On plaintiff's appeal, the Appellate Term AFFIRMED the lower court's order:

• Vacatur of the notice of trial and certificate of readiness was properly granted since the certificate of readiness contained the erroneous statement that discovery was completed or waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50358[U] [App Term, 2d & 11th Jud Dists 2007]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept 2006]).
• Moreover, contrary to plaintiff's contention, defendant is not precluded from raising a defense based upon plaintiff's allegedly fraudulent incorporation (see Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]).
• In addition, defendant is entitled to conduct an EBT of plaintiff notwithstanding the fact that defendant also served a demand for discovery and inspection of documents (see Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 293 [1984]).