Summary
This Appellate Division, Second Department decision affirms a Supreme Court order denying the defendants' motion to compel the plaintiff to submit to a physical examination and provide authorization for records regarding a prior motor vehicle accident. The court held that the defendants waived their right to conduct the examination by failing to arrange it within the prescribed timeframe and by not moving to vacate the plaintiff's note of issue within twenty days. Additionally, the defendants failed to demonstrate any unusual or unanticipated circumstances warranting further discovery after the note of issue was filed.
Topics
Practice areas
Questions Presented
- Whether the Supreme Court, Kings County erred in denying the defendants' motion to compel the plaintiff to submit to a physical examination and provide authorizations for records related to a prior motor vehicle accident.
Holdings
- The order denying the motion is affirmed because the defendants waived their right to a physical examination by failing to arrange it within the time set by prior orders and failed to show unusual or unanticipated circumstances justifying post‑note discovery.
Key quotations
“The defendants waived their right to conduct a physical examination of the plaintiff by failing to arrange such examination within the time period set forth in prior orders, and by failing to move to vacate the note of issue within 20 days after service of the note of issue and certificate of readiness.”
Factual background
The plaintiff sued to recover damages for personal injuries sustained when he tripped and fell on a sidewalk defect abutting property owned by 501 EMR, LLC. The defendants sought to compel the plaintiff to undergo a physical examination and to produce authorizations for records of a prior motor vehicle accident.
Procedural history
The Supreme Court, Kings County denied the defendants' motion to compel a physical examination on April 20, 2023. The defendants appealed that order to the Appellate Division, Second Department.