Opinion
01-05-2017
Ahmed M. KATTARIA, Plaintiff–Appellant, v. Clemente ROSADO, Defendant–Respondent.
Law Offices of Alexander Bespechny, Bronx (Alexander Bespechny of counsel), for appellant. Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel), for respondent.
Law Offices of Alexander Bespechny, Bronx (Alexander Bespechny of counsel), for appellant.
Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel), for respondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about September 14, 2015, which to the extent appealed from as limited by the briefs, granted defendant's motion to direct plaintiff to resubmit to a medical examination by defendant's designated physician, and order, same court and Justice, entered February 25, 2016, which granted defendant's motion for a protective order to compel plaintiff to attend the independent medical examination by defendant's designated physician and to exclude nonattorneys from the exam, unanimously affirmed, without costs.
The motion court providently exercised its discretion when it granted defendant's timely motion directing plaintiff to resubmit to a medical examination by defendant's designated physician, post-note of issue, in accordance with 22 NYCRR 202.21 [e] (see Andon v. 302–304 Mott St. Assoc., 94 N.Y.2d 740, 745, 709 N.Y.S.2d 873, 731 N.E.2d 589 [2000] ), and defendant did not need to prove "unusual or unanticipated circumstances" as required pursuant to 22 NYCRR 202.21 [d] (see Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 138–139, 707 N.Y.S.2d 137 [2d Dept.2000] ). The motion court also providently exercised its discretion in barring plaintiff's nonlegal representative from the medical examination, as plaintiff did not timely object to defendant's notice of physical examination in accordance with CPLR 3121 and 3122, and as plaintiff failed to demonstrate "special and unusual circumstances" warranting the nonlegal representative's presence (see Bermejo v. New York City Health & Hosps. Corp., 135 A.D.3d 116, 145, 21 N.Y.S.3d 78 [2d Dept.2015] ; Cooper v. McInnes 112 A.D.3d 1120, 1121, 977 N.Y.S.2d 767 [3d Dept.2013] ; Mertz v. Bradford, 152 A.D.2d 962, 543 N.Y.S.2d 786 [4th Dept.1989] ). ACOSTA, J.P., MAZZARELLI, ANDRIAS, FEINMAN, WEBBER, JJ., concur.