Opinion
6004N Index 150139/10
03-15-2018
David HICKEY, Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Fabiani Cohen & Hall, LLP, New York (John V. Fabiani, Jr. of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Fabiani Cohen & Hall, LLP, New York (John V. Fabiani, Jr. of counsel), for respondents.
Acosta, P.J., Richter, Kapnick, Kahn, Gesmer, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered July 1, 2016, which granted defendants' motion to vacate the note of issue to the extent of directing plaintiff to appear for independent medical examinations (IMEs) before defendants' three previously designated physicians within 90 days, unanimously affirmed, without costs.
The motion court providently exercised its discretion by permitting defendants to conduct further IMEs post-note of issue, while leaving the case on the trial calendar. The record supports the court's findings that defendants would be prejudiced by an inability to gain discovery into the effects of a 2014 car accident on plaintiff's preexisting injuries, and that, conversely, the post-note of issue discovery would not prejudice plaintiff (see Cabrera v. Abaev, 150 A.D.3d 588, 55 N.Y.S.3d 207 [1st Dept. 2017] ; Cuprill v. Citywide Towing & Auto Repair Servs., 149 A.D.3d 442, 49 N.Y.S.3d 624 [1st Dept. 2017] ; 22 NYCRR 202.21 [d] ). Nor did defendants engage in the kind of willful and contumacious dilatory tactics that would warrant denial of the motion (see Cespedes v. Mike & Jac Trucking Corp., 305 A.D.2d 222, 758 N.Y.S.2d 489 [1st Dept. 2003] ).