Opinion
Index No. 152292/2020 Motion Seq. No. 002
08-15-2023
KATHRYN WALLACE, Plaintiff, v. CITY OF NEW YORK, Defendant.
Unpublished Opinion
MOTION DATE 06/28/2023
DECISION + ORDER ON MOTION
HON. JUDY H. KIM JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51,52, 53, 54, 55, 56 were read on this motion to COMPEL DISCOVERY.
Upon the foregoing documents, the motion by defendant the City of New York (the "City") to compel plaintiff to appear for a post-note of issue independent medical examination ("IME") is granted.
On March 3, 2020, plaintiff commenced this action alleging that on June 13, 2019, she tripped and fell over a defective traffic delineator within the roadway in front of 1 Whitehall Street, New York, New York, sustaining injuries (NYSCEF Doc. Nos. 1 [Compl. at ¶¶6-10]). On November 9, 2021, the parties entered into a Case Scheduling Order ("CSO") which directed the City to designate plaintiff's IME within sixty days from the date of plaintiffs October 8, 2021 examination before trial (NYSCEF Doc. No. 10 [CSO]). The City, however, failed to do so.
On November 8, 2022, plaintiff filed a note of issue certifying this action as ready for trial while preserving the City's right to designate plaintiffs IME by November 25, 2022 (NYSCEF Doc. No. 49 [Note of Issue]). The City failed to designate plaintiff s IME within this timeframe, although the City maintains that this deadline was extended in post-note of issue emails exchanged between the parties in which plaintiff s counsel agreed to produce plaintiff for an IME within sixty days from November 30, 2022, i.e., by January 30, 2023 (NYSCEF Doc. No. 53 [Emails]). The City then requested that plaintiff appear for an IME on March 30,2023 and May 9,2023 (NYSCEF Doc. Nos. 50 [February 20,2023 IME Notice] and 51 [April 4, 2023 IME Notice]). Plaintiff failed to appear for either IME. In a letter dated June 28, 2023, plaintiffs counsel stated that plaintiff had not received the City's IME notices and, in any event, would not appear for an IME based on the City's failure to timely notice an IME as ordered by the Court (NYSCEF Doc. No. 36 [June 28, 2023 Response to Demand]).
On June 28, 2023, the City filed the instant motion seeking an order, pursuant to CPLR §3124, compelling plaintiff to appear for a post-note of issue IME, arguing that it would be prejudiced if this matter were to proceed to trial without such an IME. Plaintiff opposes the motion, arguing that the City has waived its right to conduct an IME of plaintiff by its failure to timely designate same.
DISCUSSION
"Trial courts are authorized, as a matter of discretion, to permit post-note of issue disco veiy without vacating the note of issue, so long as neither party will be prejudiced (Cuprill v Citywide Towing &Auto Repair Servs., 149 A.D.3d 442, 443 [1st Dept 2017]). Here, the Court exercises its discretion and permits the City to conduct a post-note of issue IME while the case remains on the trial calendar. The City's defense would be prejudiced should it be required to proceed to trial without an IME of plaintiff while, by contrast, plaintiff has failed to point to any prejudice to her resulting from such an IME being held (See May v Am. Red Cross, 282 A.D.2d 285 [1st Dept 2001 ]; see also Hickey v City of New York, 159 A.D.3d 511 [ 1 st Dept 2018]).
Even assuming, as plaintiff argues, that the City has waived its right to conduct an IME of plaintiff, the Court relieves this waiver in light of plaintiff's prior consent to appear for a post-note of issue IME, the City's good faith efforts to designate such IMEs and prompt application for the instant relief, and the lack of prejudice to plaintiff (See e.g., Spano v Omni Eng'g, LLC, 69 A.D.3d 922, 923 [2d Dept 2010] [waiver to conduct IME relieved where defendant designated plaintiff s IME within twenty days after the filing of the note of issue and promptly moved to compel plaintiffs appearance following plaintiff s refusal to appear for scheduled IMEs]; see also Wise v Blue. 289 A.D.2d 131, 131-132 [1st Dept 2001]).
In light of the foregoing, it is
ORDERED that the City of New York's motion to compel plaintiff to appear for a postnote of issue IME is granted; and it is further
ORDERED that, within twenty days from the date of this decision and order, the City of New York is directed to notice an IME of plaintiff and said IME is to be held within sixty days of the date of the notice; and it is further
ORDERED that the City of New York shall exchange IME reports within thirty days from the date of plaintiffs IME; and it is further
ORDERED that this case shall remain on the trial calendar;
ORDERED that there shall be no further extensions of the deadlines set forth in this decision and order without court approval and without good cause shown; and it is further
ORDERED that counsel for the City of New York shall serve a copy of this decision and order, with notice of entry, upon plaintiff as well as the Clerk of the Court (60 Centre Street, Room 14IB) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119) within ten days of the date of this decision and order; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on this court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of the Court.