Opinion
10-06-2016
Tyson JONES, et al., Plaintiffs–Respondents, v. Richard V. SETA, et al., Defendants–Appellants.
Penino & Moynihan, LLP, White Plains (Henry L. Liao of counsel), for appellants.
Penino & Moynihan, LLP, White Plains (Henry L. Liao of counsel), for appellants.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered December 2, 2015, which, insofar as appealed from, in this action for personal injuries sustained in a motor vehicle accident, denied defendants' motion to vacate the note of issue and to compel plaintiff Tyson Jones to appear for a supplemental independent medical examination (IME) and deposition regarding prior injuries, unanimously modified, on the law and the facts, to the extent of directing Jones to appear for a supplemental deposition concerning only the prior injuries and related treatment, and otherwise affirmed, without costs.
Defendants' discovery, after the filing of the note of issue, that Jones had been involved in prior accidents involving the same body parts alleged to have been injured in the subject accident, constitutes “unusual or unanticipated circumstances” warranting further discovery (22 NYCRR 202.21 [d]; see Bermel v. Dagostino, 50 A.D.3d 303, 855 N.Y.S.2d 73 [1st Dept.2008] ). However, defendants have not articulated a need for a supplemental physical examination, as the IME doctor has already examined Jones, documented his or her findings, and can supplement the same upon receipt of the records relating to Jones' prior injuries and treatment (compare Hartnett v. City of New York, 139 A.D.3d 506, 30 N.Y.S.3d 540 [1st Dept.2016] ).
RENWICK, J.P., RICHTER, MANZANET–DANIELS, FEINMAN, KAPNICK, JJ., concur.