Summary
In Resnick v. Seher (198 A.D.2d 218), we stated that as a general rule medical examinations conducted during the course of pretrial disclosure should take place in medical offices, which are presumably better equipped for such purposes.
Summary of this case from Carmody v. KuehnerOpinion
November 1, 1993
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
Ordered that the order is reversed, as a matter of discretion, with costs, and the defendant's motion is granted to the extent that (1) the notice of availability for physical examination served by the plaintiff is vacated, and (2) the plaintiff is directed to submit to no more than three medical or dental examinations, to take place at the offices of up to three physicians or dentists with offices in Nassau County, or the Town of Huntington or Town of Babylon in Suffolk County, chosen by the defendant, upon written notice of not less than 10 days, or at such times and places as the parties may agree.
Assuming that the plaintiff's argument concerning the timeliness of the defendant's motion (see, 22 NYCRR 202.17 [a]) may properly be raised for the first time on appeal (see, Sega v State of New York, 60 N.Y.2d 183, 190, n 2), we conclude that the defendant's failure to abide by the 10-day time limitation contained in 22 NYCRR 202.17 (a) does not warrant denial of her motion. All of the regulations regarding the exchange of medical information in personal injury and wrongful death actions set forth in 22 NYCRR 202.17 (a) are binding "[e]xcept where the court otherwise directs" ( 22 NYCRR 202.17). Clearly, the Supreme Court had the discretion to entertain an untimely motion made pursuant to this rule where, as in this case, there is a good excuse for the delay and no prejudice to the plaintiff (see also, CPLR 2004; Deeley v Leo's Den, 126 A.D.2d 698; De Chiaro v Rendell, 95 A.D.2d 792; Soltau v Koeppel, 54 A.D.2d 588).
Turning to the merits, we conclude that the present case is an appropriate one in which to substitute our discretion for that of the Supreme Court (see, e.g., Carden v Callocchio, 100 A.D.2d 608). Our decision clearly reflects the common sense notion that medical examinations are more properly conducted in medical offices than in the offices of an attorney (e.g., Healy v Deepdale Gen. Hosp., 145 A.D.2d 413; Deeley v Leo's Den, supra; Schussheim v Beam's Drug Corp., 45 A.D.2d 1047). In opposing the defendant's motion, the plaintiff's counsel asserted that his right to be present at these physical examinations, a right which the defendant does not dispute (see, Jakubowski v Lengen, 86 A.D.2d 398) can more conveniently be exercised if the physical examinations occur in his office. We do not agree that, as a general rule, the convenience of counsel should take precedence over the convenience of nonparty witnesses, even ones retained by counsel's adversary.
We note, in conclusion, that the plaintiff did not contest the defendant's entitlement to three physical examinations. In light of the allegations made in the bill of particulars, such multiple examinations are warranted. Bracken, J.P., Eiber, Copertino and Pizzuto, JJ., concur.