Opinion
2015-11-4
Dimitra GIANACOPOULOS, appellant, v. Maria CORONA, respondent.
Hausman & Pendzick, Harrison, N.Y. (Elizabeth M. Pendzick of counsel), for appellant. Michael E. Pressman, New York, N.Y. (Michael E. Shay of counsel), for respondent.
Hausman & Pendzick, Harrison, N.Y. (Elizabeth M. Pendzick of counsel), for appellant. Michael E. Pressman, New York, N.Y. (Michael E. Shay of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), entered May 26, 2015, as granted that branch of the defendant's renewed motion which was to compel the plaintiff to submit to an independent medical examination.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's renewed motion which was to compel the plaintiff to submit to an independent medical examination is denied.
The defendant waived her right to conduct an independent medical examination of the plaintiff by failing to designate a physician to conduct such examination within the time period set forth in the relevant compliance conference order ( see Rodriguez v. Sau Wo Lau, 298 A.D.2d 376, 751 N.Y.S.2d 231; James v. New York City Tr. Auth., 294 A.D.2d 471, 472, 742 N.Y.S.2d 855; Schenk v. Maloney, 266 A.D.2d 199, 200, 697 N.Y.S.2d 332), and by her failure 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]; 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 at 472, 742 N.Y.S.2d 855; Schenk v. Maloney, 266 A.D.2d at 200, 697 N.Y.S.2d 332; Williams v. Long Is. Coll. Hosp., 147 A.D.2d 558, 559, 537 N.Y.S.2d 853). Here, more than one year after the note of issue was served and filed, and on the eve of trial, the defendant renewed her motion, inter alia, to compel the plaintiff to submit to an independent medical examination. While the Supreme Court may, in its discretion, permit additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that “unusual or unanticipated circumstances” developed subsequent to the filing, requiring additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d] ), here, the defendant failed to offer any evidence of such unusual or unanticipated circumstances to justify relieving her of the consequences of her failure to conduct a timely medical examination of the plaintiff ( see Owen v. Lester, 79 A.D.3d at 993, 915 N.Y.S.2d 277; Manzo v. City of New York, 62 A.D.3d 964, 965, 880 N.Y.S.2d 310; James v. New York City Tr. Auth., 294 A.D.2d at 472, 742 N.Y.S.2d 855; Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 140, 707 N.Y.S.2d 137). Accordingly, that branch of the defendant's motion which was to compel the plaintiff to submit to an independent medical examination should have been denied. BALKIN, J.P., CHAMBERS, COHEN and HINDS–RADIX, JJ., concur.