Opinion
06-22-2016
Gilberto ARROYO, et al., appellants, v. Johnny Leonardo Perez LACUESTA, et al., respondents.
Buzin Law, P.C., New York, N.Y. (Andrew S. Buzin of counsel), for appellants. James J. Toomey, New York, N.Y. (Michael J. Kozoriz of counsel), for respondents.
Buzin Law, P.C., New York, N.Y. (Andrew S. Buzin of counsel), for appellants.
James J. Toomey, New York, N.Y. (Michael J. Kozoriz of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated July 30, 2015, as denied that branch of their motion which was pursuant to CPLR 3104(d) to vacate so much of an order of the same court (Schneier, J.H.O.), dated July 8, 2015, as granted that branch of the defendants' motion which was to compel the plaintiff Gilberto Arroyo to appear for a medical examination by one of the defendants' designated orthopedists and by the defendants' designated neuropsychiatrist.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Judicial Hearing Officer (hereinafter the JHO) appointed by the Supreme Court to supervise discovery as a referee (see CPLR 3104 ) providently exercised his discretion in granting that branch of the defendants' motion which was to compel the plaintiff Gilberto Arroyo (hereinafter the injured plaintiff) to appear for certain medical examinations. Although the defendants waived their right to medical examinations of the injured plaintiff by failing to conduct them within the time period set forth in a compliance conference order and to move to vacate the note of issue within 20 days after service of the note of issue and certificate of readiness (see 22 NYCRR 202.21 [e]; Gianacopoulos v. Corona, 133 A.D.3d 565, 18 N.Y.S.3d 558 ; Owen v. Lester, 79 A.D.3d 992, 993, 915 N.Y.S.2d 277 ; James v. New York City Tr. Auth., 294 A.D.2d 471, 472, 742 N.Y.S.2d 855 ), under the particular circumstances of this case, including the absence of a showing of prejudice to the plaintiffs, the defendants were properly relieved of their waiver (see Jones v. Grand Opal Constr. Corp., 64 A.D.3d 543, 544, 883 N.Y.S.2d 253 ; Barbosa v. Capolarello, 52 A.D.3d 629, 858 N.Y.S.2d 913 ; Kanterman v. Palmiotti, 122 A.D.2d 116, 504 N.Y.S.2d 513 ). The plaintiffs served a supplemental bill of particulars alleging continuing special damages and disabilities simultaneously with the service of the note of issue and certificate of readiness. This required additional pretrial proceedings to prevent substantial prejudice to the defendants (see 22 NYCRR 202.21 [d]; Vargas v. City of New York, 4 A.D.3d 524, 525, 772 N.Y.S.2d 381 ; Karakostas v. Avis Rent A Car Sys., 306 A.D.2d 381, 382, 761 N.Y.S.2d 283 ; McDowell v. Eagle Trans. Corp., 303 A.D.2d 655, 656, 758 N.Y.S.2d 79 ). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was to vacate so much of the JHO's order as directed the injured plaintiff to appear for medical examinations by one of the defendants' designated orthopedists and by the defendants' designated neuropsychiatrist (see CPLR 3104[d] ; Kingston v. Breslin, 38 A.D.3d 614, 615, 831 N.Y.S.2d 714 ; Krygier v. Airweld, Inc., 176 A.D.2d 701, 702, 574 N.Y.S.2d 791 ).