Opinion
No. CA 07-00374.
March 21, 2008.
Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered January 19, 2007 in a personal injury action. The order, insofar as appealed from, denied plaintiffs' motion for a protective order with respect to a second physical examination of plaintiff Eileen Sanly and that part of plaintiffs' subsequent motion for a protective order with respect to a second deposition of that plaintiff.
LAW OFFICES OF RICHARD S. BINKO, CHEEKTOWAGA (RICHARD S. BINKO OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
QUINN, McGARRY, CAFFERY PATRICIA, P.C., BUFFALO (KENNETH A. PATRICIA OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Present: Hurlbutt, J.P., Lunn, Fahey, Peradotto and Pine, JJ.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law with costs and the motion for a protective order with respect to a second physical examination of plaintiff Eileen Sanly and that part of the motion for a protective order with respect to a second deposition of that plaintiff are granted.
Memorandum: Plaintiffs, as limited by their brief, appeal from an order denying their motion for a protective order with respect to defendants' demand for a second physical examination of Eileen Sanly (plaintiff) and that part of their motion for a protective order with respect to defendants' demand for a second deposition of plaintiff. Both of defendants' demands for such discovery were made more than one year after the note of issue was filed. We reverse the order insofar as appealed from. "It is well established that, `absent special, unusual or extraordinary circumstances spelled out factually, the motion court lacks discretion to permit further discovery after the note of issue and statement of readiness have been filed'" ( Marks v Morrison, 275 AD2d 1027; see 22 NYCRR 202.21 [d]; Di Matteo v Grey, 280 AD2d 929, 930), and defendants failed to establish that any such circumstances developed after the filing of the note of issue and statement of readiness ( see Lopez v Barrett T.B. Inc., 38 AD3d 1308, 1310; Fuzak v Donohue, 23 AD3d 1022; Di Matteo, 280 AD2d at 930).