Opinion
Index No. 656988/2020 Motion Seq. No. 004
03-02-2023
JOHN POSTIGUONE, Plaintiff, v. NATIONAL GENERAL INSURANCE COMPANY, Defendant.
Unpublished Opinion
MOTION DATE 01/20/2023
PRESENT: HON. MARY V. ROSADO, Justice.
DECISION + ORDER ON MOTION
HON. MARY V. ROSADO, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157 were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE/JURY DEMAND/FROM TRIAL CALENDAR.
Upon the foregoing documents, Defendant National General Insurance Company's ("Defendant") motion seeking to vacate/strike the note of issue, directing Plaintiff John Postiglione ("Plaintiff) to comply with all outstanding discovery yet to be completed, including appearing for an ophthalmological Independent Medical Examination, and extending Defendant's time to move for summary judgment is granted in part and denied in part.
This is an action against an insurer for failure to make payments on Plaintiffs claim arising out of a motor vehicle accident (NYSCEF Doc. 1). Plaintiff alleges he has suffered a variety of injuries from the motor vehicle accident, including traumatic brain injury, post-traumatic stress disorder, cataracts, blurry vision, eye pain, loss of motion, and spinal, knee, and elbow injuries (NYSCEF Doc. 140).
At Plaintiffs deposition, which took place on June 7,2022, counsel for Plaintiff mentioned a recent eye surgery that Plaintiff had undergone and that he would "probably be supplementing the Bill of Particulars and giving [Defense counsel] authorizations" (id. at 8: 22-25). Plaintiff also testified at the time of his deposition he was to undergo another eye surgery, after which Defendant again requested a supplemental bill of particulars and authorizations for Plaintiffs eye treatment (id. at 153:9-23).
After the deposition, on June 17, 2022, Plaintiff objected to the IMEs designated by Defendant, and sought an order to show cause compelling Defendant to be precluded from subjecting Plaintiff to a neurological defense medical examination and to use a certain doctor for an orthopedic defense medical examination (NYSCEF Doc. 108). The Court declined to sign that order to show cause and attempted to resolve this issue by conferencing with the parties. After the issue could not be resolved, the parties submitted letter briefs on August 4, 2022, and August 11, 2022 regarding their positions (NYSCEF Docs. 122-123). By order of this Court dated October 28, 2022, the Court directed Plaintiff to appear for certain independent medical examinations which he had previously found objectionable and to file the note of issue by January 31, 2023 (NYSCEF Doc. 128) (id)
Shortly after the order was issued, on November 3, 2022, Defendant noticed Plaintiff for several independent medical examinations ("IME") (NYSCEF Doc. 129-131). An IME with Dr. Bazos, an orthopedic surgeon, was held on December 15, 2022 (NYSCEF Doc. 129). An IME with Dr. Merkler, a neurologist was held on November 30, 2022 (NYSCEF Doc. 130). An IME with Dr. Rothstein, an ophthalmologist, was to take place on December 1, 2022 (NYSCEF Doc. 131). Plaintiff filed the note of issue indicating medical examinations had been completed on December 16,2022 (NYSCEF Doc. 132). Shortly thereafter, on January 4,2023, Defendant moved to vacate the note of issue because the ophthalmological medical examination was never held.
Plaintiff argues that Defendant is not allowed to obtain an ophthalmological medical examination because it did not seek written approval from the Court as directed by the prior judge assigned this case (NYSCEF Doc. 105). However, Plaintiff ignores the fact that the prior order set a deadline for IMEs within thirty days of the completion of depositions. Plaintiff caused the IMEs to be delayed beyond the deadline by objecting to attending IMEs and filing an order to show cause seeking to preclude certain IMEs from taking place (NYSCEF Doc. 108). Moreover, Plaintiff claims eye injuries in his bill of particulars, testified at his deposition about upcoming eye surgery, and counsel for Plaintiff stated on the record that he will "probably" be supplementing his bill of particulars. Therefore, there are multiple good faith reasons for why Defendant delayed in requesting the ophthalmological examination. A review of the record indicates Plaintiff is at least partially culpable for the delay in conducting the IMEs. Further, had Plaintiff not objected to the ophthalmological examination, it could have been completed prior to the deadline for filing the note of issue. In any event, given Plaintiffs culpable conduct in causing the delay, and Plaintiffs serious alleged eye injuries, Plaintiff is directed to appear for an ophthalmological examination.
The First Department has repeatedly held that a note of issue should be vacated when it is based upon a certificate of readiness that contains erroneous facts (Pickering v Union 15 Restaurant Corp., 107 A.D.3d 450, 451 [1st Dept 2013]; Vargas v Villa Josefa Realty Corp., 28 A.D.3d 389, 390 [1st Dept 2006]). A note of issue and certificate of readiness which wrongly indicates that a physical examination has been completed should be vacated (Cromer v Yellen, 268 A.D.2d 381 [1st Dept 2000]). However, when little discovery remains, such as simply conducting an IME, the First Department has held it is appropriate to allow completion of post-note of issue discovery (Pickering v Union 15 Restaurant Corp., 107 A.D.3d 450, 451 [1st Dept 2013] [stating court could have allowed IME without vacating the note of issue]; see also Torres v New York City Transit Authority, 192 A.D.2d 400 [1st Dept 1993]).
The note of issue falsely states that all medical examinations have taken place, which provides grounds for vacating the note of issue. However, as all that remains in discovery is completion of an ophthalmological examination, the Court will allow post-note of issue discovery to take place rather than striking the note of issue. Moreover, as Defendant indicated it may rely on the ophthalmological examination to make a motion for summary judgment, an extension of time to file a motion for summary judgment is granted.
Accordingly, it is hereby, ORDERED that Defendant National General Insurance Company's motion seeking to vacate the note of issue is denied in part and granted in part; and it is further
ORDERED that Plaintiff John Postiglione must appear for an independent medical examination with Dr. Rothstein or some other ophthalmologist designated by Defendant National General Insurance Company on or before April 17, 2023, and that any report issued as a result of said independent medical examination shall be exchanged by May 29, 2023. Should Plaintiff fail to comply with this directive the note of issue may be stricken, or Plaintiff may be precluded from offering any evidence related to his eye injuries at trial; and it is further
ORDERED that Defendant National General Insurance Company's time to file a motion for summary judgment be extended by 120 days from the date of the ophthalmological examination; and it is further
ORDERED that should either party fail to comply with the directives contained in this Decision and Order, the parties are directed to immediately notify the Court via affirmation or affidavit uploaded to NYSCEF and e-mail to SFC-Part33-Clerk@nvcourts.gov; and it is further
ORDERED that within 10 days of entry, counsel for Defendant shall serve a copy of this Decision and Order, with notice of entry, on Plaintiff; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.