Opinion
2012-02-7
Katharine STOCK, et al., respondents, v. Nichol MORIZZO, doing business as Village Hair Studio, et al., defendants,Mr. Beauty Equipment, Ltd., appellant (and third-party actions).
Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for appellant. Dubow, Smith & Marothy, Bronx, N.Y. (Steven J. Mines of counsel), for respondents.
Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for appellant. Dubow, Smith & Marothy, Bronx, N.Y. (Steven J. Mines of counsel), for respondents.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, etc., the defendant Mr. Beauty Equipment, Ltd., appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated May 31, 2011, which denied its renewed motion to compel the plaintiff Katharine Stock to submit to an independent neuropsychiatric examination.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the renewed motion of the defendant Mr. Beauty Equipment, Ltd., to compel the plaintiff Katharine Stock to submit to an independent neuropsychiatric examination is granted.
The Supreme Court, in its discretion, may grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that “unusual or unanticipated circumstances” developed subsequent to the filing that require additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d]; see Lopez v. Retail Prop. Trust, 84 A.D.3d 891, 921 N.Y.S.2d 906; Wigand v. Modlin, 82 A.D.3d 1213, 919 N.Y.S.2d 868; Owen v. Lester, 79 A.D.3d 992, 915 N.Y.S.2d 277; Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 140, 707 N.Y.S.2d 137). Here, more than two years after the filing of the note of issue and certificate of readiness, the plaintiffs served a neuropsychiatric report, which alleged that the injured plaintiff suffered from new or additional psychiatric injuries and that her psychological injuries had dramatically changed. Under these circumstances, the appellant demonstrated that “unusual or unanticipated circumstances” developed subsequent to the filing of the note of issue and certificate of readiness, justifying a neuropsychiatric examination of the injured plaintiff ( see Sorrentino v. Fedorczuk, 85 A.D.3d 759, 760, 925 N.Y.S.2d 150; Singh v. 244 W. 39th St. Realty, Inc., 65 A.D.3d 1325, 1326, 886 N.Y.S.2d 226; Karakostas v. Avis Rent A Car Sys., 306 A.D.2d 381, 382, 761 N.Y.S.2d 283; Huggins v. New York City Tr. Auth., 225 A.D.2d 732, 733, 640 N.Y.S.2d 199). Accordingly , the Supreme Court should have granted the appellant's renewed motion to compel the injured plaintiff to submit to an independent neuropsychiatric examination.
We have not considered the appellant's contention that the injured plaintiff should also be compelled to submit to an additional deposition, which was improperly raised for the first time in reply papers, and not considered by the Supreme Court ( see Encarnacion v. Smith, 70 A.D.3d 628, 629, 893 N.Y.S.2d 625; Goldstein v. Haberman, 183 A.D.2d 807, 584 N.Y.S.2d 121),