Opinion
04-09-2015
Victoria GUERRA, et al., Plaintiffs–Respondents, v. Leslie McBEAN, et al., Defendants–Appellants.
Mauro Lilling Naparty LLP, Woodbury (Matthew W. Naparty of counsel), for appellants. Alexander J. Wulwick, New York, for respondents.
Mauro Lilling Naparty LLP, Woodbury (Matthew W. Naparty of counsel), for appellants.
Alexander J. Wulwick, New York, for respondents.
Opinion Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about July 15, 2014, which denied defendants' motion to compel plaintiffs to appear for further orthopedic examinations, unanimously affirmed, without costs.
Defendants failed to establish that plaintiffs' representative's presence at their physical examinations deprived defendants of the ability to conduct meaningful examinations (see CPLR 3121[a] ; Tucker v. Bay Shore Stor. Warehouse, Inc., 69 A.D.3d 609, 609–610, 893 N.Y.S.2d 138 [2d Dept.2010] ; cf. Orsos v. Hudson Tr. Corp., 95 A.D.3d 526, 944 N.Y.S.2d 514 [1st Dept.2012] [court directed a second IME of plaintiff where defendants' IME physician reflected a potential bias toward plaintiff by recommending that she treat with his partner after the litigation concluded] ). Defendants' expert's lengthy reports relating to the examinations reflect that he was able to perform range of motion and other testing and issue unequivocal diagnoses, and gave no indication that further examinations were required (see Bravo v. Vargas, 113 A.D.3d 577, 579, 978 N.Y.S.2d 313 [2d Dept.2014] ; Jakubowski v. Lengen, 86 A.D.2d 398, 400–402, 450 N.Y.S.2d 612 [4th Dept.1982] [defendant made no showing that presence of law clerk from plaintiff's counsel's office interfered with IME]; cf. Chaudhary v. Gold, 83 A.D.3d 477, 478, 921 N.Y.S.2d 219 [1st Dept.2011] [neuropsychological IME granted upon defendants' submission of supporting expert affidavit after plaintiff had undergone neurological and neuropsychiatric IMEs] ). To the limited extent that questions were not answered during the examinations, the court appropriately directed plaintiffs to provide affidavits as to the missing responses.
GONZALEZ, P.J., MAZZARELLI, SAXE, MANZANET–DANIELS, CLARK, JJ., concur.