Summary
In Santana v. Johnson, 154 A.D.3d 452, 60 N.Y.S.3d 831 (1st Dept. 2017), the First Department affirmed the determination of the trial court in holding that IME observers would be precluded from testifying only in the event that they failed to appear for a deposition within sixty days.
Summary of this case from Carlson v. Tappan Zee Constructors, LLCOpinion
10-05-2017
Miguel SANTANA, et al., Plaintiffs–Respondents, v. Curtis JOHNSON, Jr., et al., Defendants–Appellants.
Cheven Keely & Hatzis, New York (Thomas Torto of Counsel), for appellants. Trivella & Forte, LLP, New York (Arthur J. Muller, III of Counsel), for respondents.
Cheven Keely & Hatzis, New York (Thomas Torto of Counsel), for appellants.
Trivella & Forte, LLP, New York (Arthur J. Muller, III of Counsel), for respondents.
The motion court providently exercised its discretion in granting defendants' preclusion motion only in the event that the nonparty witnesses failed to appear for depositions concerning their observations at physical examinations of plaintiffs (see CPLR 3126 ). Plaintiffs are entitled to have a representative present at their physical examinations as long as the representative does not interfere with the examinations conducted by defendants' designated physician or prevent defendants' physician from conducting a meaningful examination (see Guerra v. McBean, 127 A.D.3d 462, 4 N.Y.S.3d 526 [1st Dept.2015] ; Henderson v. Ross, 147 A.D.3d 915, 47 N.Y.S.3d 136 [2d Dept.2017] ; Marriott v. Cappello, 151 A.D.3d 1580, 56 N.Y.S.3d 691 [4th Dept.2017] ). In the present case, there is no contention that the observers interfered with the examinations and the physicians issued thorough reports without indicating that any further examinations were required.
To the extent that this Court has implicitly suggested that a representative can be barred from an examination if the plaintiff fails to demonstrate special and unusual circumstances (see Kattaria v. Rosado, 146 A.D.3d 457, 43 N.Y.S.3d 758 [1st Dept.2017] ), that is not the current state of the law in either the First, Second or Fourth Departments and is inconsistent with the general principle that plaintiffs are entitled to have a representative present at their medical examinations ( Guerra at 462, 4 N.Y.S.3d 526 ; Henderson at 916, 47 N.Y.S.3d 136 ; Marriott at 1582, 56 N.Y.S.3d 691 ).
To the extent defendants sought a pretrial order precluding testimony of the observers as cumulative of plaintiffs' anticipated testimony, the order denying that request is not appealable (see Casler Masonry, Inc. v. Barr & Barr, Inc., 118 A.D.3d 609, 610, 988 N.Y.S.2d 614 [1st Dept.2014] ; Santos v. Nicolas, 65 A.D.3d 941, 885 N.Y.S.2d 202 [1st Dept.2009] ).
SWEENY, J.P., RENWICK, KAPNICK, KERN and MOULTON, JJ., concur.