Opinion
No. 2019-13799 Index No. 6477/17
08-10-2022
Patrick McBride, appellant, v. City of New York, respondent.
Jonah Grossman, Jamaica, NY (Lawrence B. Lame of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Claude S. Platton and Kevin Osowski of counsel), for respondent.
Jonah Grossman, Jamaica, NY (Lawrence B. Lame of counsel), for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Claude S. Platton and Kevin Osowski of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P. REINALDO E. RIVERA CHERYL E. CHAMBERS JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered September 24, 2019. The order, insofar as appealed from, granted that branch of the defendant's motion which was pursuant to CPLR 3124 to compel the plaintiff to appear for an independent medical examination.
ORDERED that the order is affirmed insofar as appealed from, with costs.
"The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the Supreme Court. The Supreme Court's discretion is broad because it is familiar with the action before it, and its exercise should not be disturbed on appeal unless it was improvidently exercised" (Provident Life & Cas. Ins. Co. v Brittenham, 284 A.D.2d 518, 518; see Encalada v Riverside Retail, LLC, 175 A.D.3d 467, 469). Here, even though the defendant waived its right to conduct an independent medical examination of the plaintiff by failing to identify the examining physician within the time prescribed by a prior order and a stipulation, under the particular circumstances of this case, including the absence of a showing of prejudice to the plaintiff, the defendant was properly relieved of its waiver (see Arroyo v Lacuesta, 140 A.D.3d 994, 994-995; Barbosa v Capolarello, 52 A.D.3d 629; Venia v 18-05 215th St. Owners, 288 A.D.2d 463, 464; see also Andujar v Boyle, 190 A.D.3d 900, 901-902). Thus, the Supreme Court providently exercised its discretion in granting that branch of the defendant's motion which was pursuant to CPLR 3124 to compel the plaintiff to appear for an independent medical examination.
BRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and ZAYAS, JJ., concur.