Kovacs Sec. Sys., Inc. v. Belessis

Kovacs Sec. Sys., Inc. v Belessis (2021 NY Slip Op 50076(U)) [*1] Kovacs Sec. Sys., Inc. v Belessis 2021 NY Slip Op 50076(U) [70 Misc 3d 137(A)] Decided on February 4, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on February 4, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, J.P., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ 2019-1140 N C Kovacs Security Systems, Inc., Respondent, against Rea Belessis, Appellant. Rea Belessis, against Kovacs Security Systems, Inc. Effy B. Jable, for appellant. Jay A. Press, P.C. (Danielle N. Grzan of counsel), for respondent (no brief filed). Appeal from an order of the District Court of Nassau County, First District (Robert E. Pipia, J.), dated April 1, 2019. The order in this consolidated action, insofar as appealed from as limited by the brief, denied the branch of Rea Belessis's motion seeking to vacate Kovacs Security Systems, Inc.'s notice of trial and strike the action from the trial calendar. ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of Rea Belessis's motion seeking to vacate Kovacs Security Systems, Inc.'s notice of trial and strike the action from the trial calendar is granted. The present action results from the consolidation [FN1] of an action commenced by Kovacs Security Systems, Inc. (Kovacs) seeking to recover damages for breach of contract, with a small claims action commenced by Rea Belessis seeking to recover the principal sum of $4,000, representing the deposit she made to Kovacs upon signing that contract. After Kovacs filed a notice of trial and a certificate of readiness, Belessis moved, among other things, pursuant to, in effect, Uniform Civil Rules for District Courts (22 NYCRR) § 212.17 (c), to vacate the notice of trial and to strike the action from the calendar. Belessis appeals, as limited by her brief, from so much of an order of the District Court as denied that branch of her motion. The branch of Belessis's motion seeking to vacate the notice of trial and strike the action from the trial calendar should have been granted. Uniform Civil Rules for District Courts (22 NYCRR) § 212.17 (c) provides that a party may move to vacate a notice of trial within 20 days of its service and that "[t]he affidavit in support of the application must specify the reason the action is not entitled to be on the calendar." Belessis's motion was timely (see CPLR 2103 [b] [2]) and the action was not ready for trial because no discovery had been conducted (see Uniform Civ Rules for Dist Cts [22 NYCRR] § 212.17 [c]; see also Tirado v Miller, 75 AD3d 153, 156 [2010]; Audiovox Corp. v Benyamini, 265 AD2d 135, 138 [2000]). Accordingly, the order, insofar as appealed from, is reversed and the branch of Belessis's motion seeking to vacate the notice of trial and strike the action from the trial calendar is granted. GARGUILO, J.P., RUDERMAN and EMERSON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: February 4, 2021 Footnotes Footnote 1: The August 20, 2018 consolidation order retained the two separate captions with their respective index numbers.