Opinion
2011-03-29
Bridget WIGAND, appellant, v. Saul MODLIN, respondent.
John T. Wisell, Kew Gardens, N.Y. (Nancy McGee of counsel), for appellant. Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling of counsel), for respondent.
John T. Wisell, Kew Gardens, N.Y. (Nancy McGee of counsel), for appellant. Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling of counsel), for respondent.
In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), dated July 20, 2009, as, in effect, upon reargument, adhered to its prior determination in an order of the same court dated April 16, 2009, granting that branch of the defendant's motion which was to direct the plaintiff to appear for an independent medical examination.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and, upon reargument, the determination in the order dated April 16, 2009, is vacated, and that branch of the defendant's motion which was to direct the plaintiff to appear for an independent medical examination is denied.
In this action to recover damages for medical malpractice and lack of informed consent, the defendant moved, on the eve of trial, inter alia, to direct the plaintiff to appear for an independent medical examination (hereinafter IME). Thereafter, the Supreme Court issued a written order dated April 16, 2009, which, among other things, directed the plaintiff to appear for the IME. The plaintiff then moved, in effect, for leave to reargue her opposition to that branch of the defendant's motion which was to direct her to appear for the IME. Upon reargument, the Supreme Court adhered to its prior determination. We reverse the order insofar as appealed from.
The Supreme Court may, in its discretion, 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, requiring additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d]; see 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). However, the Supreme Court erred in adhering to its determination granting that branch of the defendant's motion, made on the eve of trial, which was to direct the plaintiff to appear for an IME. The defendant failed to offer evidence of unusual or unanticipated circumstances that developed subsequent to the filing of the note of issue and certificate of readiness to justify relieving him of the consequences of his failure to conduct a timely medical examination of the plaintiff ( see Owen v. Lester, 79 A.D.3d 992, 915 N.Y.S.2d 277;Manzo v. City of New York, 62 A.D.3d 964, 965, 880 N.Y.S.2d 310;Audiovox Corp. v. Benyamini, 265 A.D.2d at 138, 707 N.Y.S.2d 137).
Accordingly, upon reargument, that branch of the defendant's motion which was to direct the plaintiff to appear for an IME should have been denied.