Opinion
11726N Index 300736/16
06-25-2020
Maia SHULMAN, Plaintiff-Respondent, v. ZFX, INC. also known as ZFX Flying Effects, Defendant-Appellant, Wicked LLC, et al., Defendants. [And A Third-Party Action]
Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Lori F. Graybow of counsel), for appellant. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Lori F. Graybow of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent.
Renwick, J.P., Mazzarelli, Webber, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about February 22, 2019, which denied defendant ZFX, Inc.'s motion to compel plaintiff to submit to post-note of issue medical examinations, unanimously affirmed, without costs.
The court providently exercised its discretion in denying defendant's motion to compel plaintiff to submit to medical examinations (IMEs) (see Parato v. Yagudaeu, 46 A.D.3d 332, 848 N.Y.S.2d 46 [1st Dept. 2007] ; Colon v. Yen Ru Jin, 45 A.D.3d 359, 845 N.Y.S.2d 281 [1st Dept. 2007] ). Defendant brought this motion more than 14 months after the note of issue was filed and almost one year after obtaining additional time for the designation of IMEs post-note of issue, without offering any excuse for its inaction or alleging unusual or unanticipated circumstances that would warrant the relief requested. Moreover, defendant had violated three prior court orders setting deadlines for the designation and completion of medical examinations.