Opinion
1514 QCV 2003.
Decided September 30, 2004.
The Plaintiff: Barry Siskin, Esq., New York, New York.
For the Defendant: Law Office of John P. Humphreys, by Catherine F. Cavanagh, Esq., Melville, New York.
A review of the facts concerning the present motion, seeking to strike plaintiff's action from the trial calendar and the claim of a preference, reveal that, too often, litigation is about gamesmanship, and not the quest for justice. The bottom line question is whether the defendant waived its right to a physical examination or an independent medical examination ("IME").
A review of the procedural history of this action, commenced in 2001, in Supreme Court, Queens County, and later transferred to this Court, pursuant to CPLR 325(d), shows that in or about January, 2003, as part of a general discovery order, Supreme Court, Queens County designated a deadline for defendant to conduct physical examinations of the plaintiff.
After the transfer of the action to this Court, the defendant moved for a physical examination of the plaintiff, and the defendant opposed the motion that the defendant, by his inaction, waived any right to an IME.
Judge Timothy Dufficy, of this Court, in an order dated March 30, 2004, directed the physical examinations to go forward within thirty days and added that applications for adjournments of such IMEs will be denied. Defendant, on or about March 31, 2004, served a copy of such order upon plaintiff's counsel, although Judge Dufficy's order did not require the service of an order with notice of entry. Plaintiff's counsel acknowledged receiving the order from defense counsel.
Although defense counsel served a copy of the order with a purported notice of entry, defendant failed to comply with the literal terms of the order. Defense counsel delegated the task of scheduling the IMEs to an "outside vendor," Support Claim Services. Defendant's agent failed to schedule the IMEs until defense counsel received plaintiff's notice of trial, dated May 11, 2004. Surprised at the notice of trial, defense counsel called plaintiff's attorney, Barry Siskin, Esq., and sent a letter to him calling for his client to appear at two IMEs on the afternoon of May 26, 2004. Putting aside the very short notice afforded by defense counsel or its agent, it failed to send a copy of the letter to the plaintiff, who had moved to the Dominican Republic.
The notice of entry was a complete nullity. The order served did not contain a date of when it was actually entered by the Clerk of the Court ( see, Baranello v. Westchester Sq. Med. Ctr., 282 AD2d 259 [1st Dept. 2001]); N.Y.C. Med. and Neurodiagnostic, P.C. v. Republic W. Ins. Co., 3 Misc 3d 925, 927 n. 1 [NYC Civ Ct Queens County 2004]). The requirement that a party mail to an adversary a copy of an order that bears a stamped date by the Clerk usually assumes importance on the issue of determining whether the thirty days in which to file a notice of appeal begins to run. Here, the issue is not so important, but is significant that defendant thought that the order was a significant one, and plaintiff's counsel does acknowledge its mailing and receipt.
When plaintiff failed, of course, to appear at the IMEs on May 26, on the next day, May 27, 2004, defendant made the instant motion to compel.
As a preliminary issue, this Court notes that this motion is not one to reargue. Although, arguably, might have been referred to Judge Dufficy for his interpretation of his March 30th order, this Court will not burden a colleague Judge, in the absence of a motion clearly requesting reargument or renewal.
The meaning of Judge Dufficy's order, to the undersigned, was aimed at plaintiff and her counsel who fought against such a physical examination, and who, to this Court, at the oral argument of the within motion on June 28, 2004, still maintained that plaintiff should not be made to return from the Dominican Republic to this country simply for such IMEs.
Evidencing that defendant did not sleep on its rights to an IME is the fact that his counsel served plaintiff's counsel with notice of entry of Judge Dufficy's order. Plaintiff's counsel, rather than contact the insurer to schedule a date for the examination so as not to inconvenience his client, was content to hold onto the order and simply watch thirty days fly by. When the thirty days elapsed, plaintiff filed a notice of trial. Indeed, even in the notice of trial, plaintiff's counsel alleges incorrectly that the physical examination was "completed" and did not indicate that it was "waived."
Plaintiff's counsel's argument is untenable and in contravention of the spirit of Judge Dufficy's order. True, Judge Dufficy's order required compliance with a physical examination within 30 days, but his intent was aimed at the reluctant plaintiff who sought to evade the examination. This Court will not permit a party to prevail, where it technically adhered to the letter of a court order, but sapped its spirit.
In Garcia v. Munnerlyn ( 191 Misc 2d 689 [NYC Civ Ct Queens County 2002]), this Court summarized the unusually treacherous ground rules for when a notice for an independent medical examination is considered waived. Usually, when the request for an IME is made following a note of issue, in Supreme Court practice, or a notice of trial, in Civil Court practice, it will be denied absent an explanation of unanticipated circumstances ( id. at 692-693).
In the present case, the defendant did not first assert its right to an IME following the notice of trial, but fought for it even before such a notice was served. At the Court's invitation, defense counsel has shared several letters sent by defendant's agent during 2003, aside from the disputed 2004 letter, requesting an IME. Although each of the letters gave plaintiff and her counsel unreasonably short notice of an IME, collectively they evidence defendant's desire to pursue a physical examination of the plaintiff. Under these circumstances, the Court will not require a showing of "unusual or unanticipated circumstances" ( see, e.g., James v. New York City Tr. Auth. 294 AD2d 471, 742 NYS2d 855 [2nd Dept. 2002]; accord, Urena v. Bruprat Realty Corp., 179 AD2d 505 [1st Dept. 1992] [plaintiffs' failure to provide medical authorizations contributed to the delay]).
The defendant acted within the time constraints required by court rule and case law in seeking to strike the notice of trial, which require that the motion be made within 20 days of the filing of the allegedly improper notice ( see, e.g., Rodriguez v. Lau, 298 AD2d 376 [2nd Dept. 2002] [citing other cases]; 22 NYCRR 202.21[e]).
The 23-year old plaintiff also cannot show any prejudice that she sustained by being asked to undergo an IME. In contrast to the facts of this case, the First Department, in Santiago v. 679 Waring Avenue LLC ( 3 AD3d 409), recently found prejudice where the defendant first demanded the physical examination only after the case commenced by the 65 year old plaintiff had been on the trial calendar for four years ( id. at 410).
A defendant, who has requested an IME, and reasonably sought to have it occur, should not be deemed to have waived it and then be allowed to be soaked in damages at trial without a meaningful opportunity for cross-examination and defense ( see, Muller v. Brailofsky, 179 Misc 2d 634 [Sup Ct Kings County 1999] [Shaw, J.]). Permitting plaintiff to prevail, and not permit any physical examination, under the circumstances of the case at bar, would accomplish just that result.
The Court must then fashion appropriate relief. While the stonewalling and literalism of plaintiff's counsel is inappropriate, the repeated lapses of defense counsel also should not be rewarded. No excuse exists for repeated failures to follow through an explicit court order. As to defense counsel's claim pointing the finger to the mistakes of its agent, Support Claim Services, defense counsel must assume responsibility for the errors of its agent. Defense counsel has a duty to delegate wisely, and the matters that are delegated and to whom they are delegated are an attorney's responsibility.
At oral argument, plaintiff's counsel sought, in exchange for consenting to a physical examination, that defendant pay for plaintiff's flight from the Dominican Republic to New York for the IME and that defendant waive its right to make a threshold motion under Insurance Law section 5102(d). In reflecting on the proper relief for the circumstances of the present case, the Court will permit the case to remain on the trial calendar, but will schedule the IME for a date certain. The two IMEs shall occur on December 15, 2004, at 3:00 PM and 3:30 PM promptly by the two doctors designated in the letter of Support Claim Services of May 20, 2004. Moreover, such IMEs shall be held provided that defense counsel sends a check to plaintiff's counsel in the amount of $600 to cover the cost of plaintiff's round-trip transportation to and from the Dominican Republic and any other expenses and inconveniences caused by defendant's failure to adhere to court deadlines. If said sum is not timely received, on or before November 12, 2004, such IMEs shall be deemed waived. Any further motion regarding this issue shall be referred to the undersigned.
This Court will not bar the defendant from moving or summary judgment, but, at the same time, also will not expressly permit it. Whether such motion is made under the time constraints of the CPLR or is decided before this case is called for trial is at defendant's own risk.
The defendant also seeks to strike the request for a preference. A preference here is without merit. The plaintiff in this case is a young 23 year old woman, not a septuagenarian ( see, CPLR 3403([a][4]). She is also not "terminally ill" [CPLR 3403[a][6]). Plaintiff's counsel, in a "verified bill of particulars" [although the verification page was not submitted to the Court], dated January 29, 2003, listed the maladies as spinal derangement, radiculitis, loss of range of motion, and headaches — not life-threatening injuries.
Despite these injuries on the bill of particulars, plaintiff's counsel, in the notice of trial, sought a preference, stating that "the plaintiff has sustained severe and disabling injuries of permanent nature." As an initial matter, and pragmatically, injuries as the type described by plaintiff's counsel on the notice of trial, usually do not get transferred to this Court under CPLR 325(d).
Putting that observation aside, plaintiff's counsel has not defended the request for a preference on this motion. This Court's independent research reveals that some older cases have allowed it ( see, Singleton v. Schultz, 20 AD2d 517 [1st Dept. 1963] [special damages, fractured leg, restriction of motion, dizziness, and headaches]). More recent cases show a reluctance to grant a preference. In Bernard v. Hyman ( 155 AD2d 403 [2nd Dept. 1989]), the plaintiff was dying of a terminal illness. The appellate court, reversing the lower court, struck the preference since the only medical report did not indicate that there was an imminent danger of death. The Second Department stated:
A special trial preference is an extraordinary privilege. The granting of a preference amounts to favoring one case over many others awaiting trial. It should be granted only where unusual or extraordinary hardship is demonstrated.
( Id.).
If the injuries in the present case qualify for a preference, then thousands of other cases should similarly qualify thereby diluting the CPLR provision requiring a terminal illness.
Plaintiff's counsel, indeed, on this motion, does not even attempt to justify or defend the request for a preference. At my request, plaintiff's counsel briefed this issue in an additional submission. In a letter of September 8, 2004, Mr. Siskin states he was not asking for a "special preference," but only "a general preference." Rather than debate nomenclature, the Court rules that this cases is not entitled to a preference.
If anything, the unwarranted request for a preference, in the case at bar, underscores defendant's point on the primary issue regarding an IME. Specifically, if the plaintiff's injuries were as grave as portrayed by her counsel, they should have voiced no objection to the conduct of IMEs. The defense motion is granted only to the extent of striking only the request for a preference and ordering counsel to comply with all of the above-mentioned directions.
The foregoing constitutes the decision, order, and opinion of the Court.