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Lapson v. Hertz Corporation

Appellate Division of the Supreme Court of New York, First Department
Jan 15, 1991
169 A.D.2d 464 (N.Y. App. Div. 1991)

Opinion

January 15, 1991

Appeal from the Supreme Court, New York County (Eugene Nardelli, J.).


Although generally a party's failure to move to vacate a note of issue and a certificate of readiness within 20 days of service constitute a waiver of the right to conduct a subsequent physical examination, an adequate reason for the delay and lack of prejudice to plaintiff was demonstrated here so as to relieve defendant of such waiver. (See, Dominguez v Manhattan Bronx Surface Tr. Operating Auth., 168 A.D.2d 376.)

The instant record clearly reveals the need for a neurological examination of plaintiff by defendant's physician. Shortly after plaintiffs filed their note of issue and certificate of readiness, defendant Hertz obtained an order permitting its orthopedist to conduct a physical examination of plaintiff. On the date of such examination, plaintiff served defendant with an amended verified bill of particulars in which she expanded the scope of her alleged injuries to include some which were neurological in nature. At the conclusion of the orthopedic examination, defendant's physician, who did not have the benefit of having read the pleading, indicated the need for a neurological examination because plaintiff's "subjective symptoms" were not "causally related" to his objective findings.

Additionally, no prejudice can be discerned, as the matter remains on the Trial Calendar.

We have considered plaintiffs' remaining claim and find it to be without merit.

Concur — Murphy, P.J., Milonas, Kupferman and Rubin, JJ.


Summaries of

Lapson v. Hertz Corporation

Appellate Division of the Supreme Court of New York, First Department
Jan 15, 1991
169 A.D.2d 464 (N.Y. App. Div. 1991)
Case details for

Lapson v. Hertz Corporation

Case Details

Full title:DIANE S. LAPSON et al., Appellants, v. HERTZ CORPORATION et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 15, 1991

Citations

169 A.D.2d 464 (N.Y. App. Div. 1991)
564 N.Y.S.2d 161