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The Rogak Report: 03 June 2009 (Part 2) ** Discovery - Laches **

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  • insurancelawyer
    PLAINTIFF S FAILURE TO APPEAR FOR EBT IS BASIS FOR VACATING NOTICE OF TRIAL; LACHES IS NO DEFENSE Queens Chiropractic Mgt., P.C. a/a/o Mohammad Seraz Islam v.
    Message 1 of 1 , Jun 3, 2009
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      PLAINTIFF'S FAILURE TO APPEAR FOR EBT IS BASIS FOR VACATING NOTICE OF TRIAL; LACHES IS NO DEFENSE

      Queens Chiropractic Mgt., P.C. a/a/o Mohammad Seraz Islam v. Country Wide Ins. Co.
      2009 NY Slip Op 51073(U)
      Decided on May 27, 2009
      Appellate Term, Second Department
      Edited by Lawrence N. Rogak


      Here is something that happens all too frequently but is rarely addressed by the courts: what happens if the plaintiff files a Notice of Trial but has not complied with a certain discovery demand (such as, here, a demand for a deposition), but the demand was served early in the lawsuit and nothing was done to follow up?

      The answer provided by the Appellate Term here (reversing Civil/Queens) is: the notice of trial can be vacated because the Certificate of Readiness falsely asserts that all discovery has been conducted or waived.

      "In this action by a provider to recover assigned first-party no-fault benefits, defendant's answer, served in September 2005, was accompanied by notices to take deposition upon oral examination and various other discovery demands. After plaintiff served a notice of trial and certificate of readiness in October 2007, defendant moved to vacate same, asserting that, contrary to plaintiff's representation, discovery was not complete. The Civil Court denied defendant's motion on the ground of laches due to the passage of time between the service of defendant's discovery demands and the date on which plaintiff served its notice of trial. This appeal by defendant ensued."

      "Defendant's timely motion to vacate the notice of trial... should have been granted since it was based upon a certificate of readiness which contains the erroneous statement that discovery was completed or waived.  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, or complied with the other discovery demands, the notice of trial and certificate of readiness should be vacated."

      "We further note that the doctrine of laches does not warrant denial of defendant's motion (see Kornblatt v Jaguar Cars, 172 AD2d 590 [1991])."

      Comment: For those unfamiliar with the term, "laches" is a doctrine which, generally, holds that if you wait too long to assert a right, you lose it.  This is not the same as a statute of limitations.   It's more like waiting until the bus passes your stop before you pull the bell cord.  In any event, this case stands for the principle that merely failing to repeatedly ask the other party to respond to a discovery demand does not amount to a waiver, if you make a timely motion to vacate the notice of trial.  

      Larry Rogak 

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