Opinion
12-28-2016
Richard WINER, et al., respondents, v. Michele ALIANI, et al., appellants.
Barry, McTiernan & Moore LLC, New York, NY (Laurel A. Wedinger of counsel), for appellants. Levine & Grossman, Mineola, NY (Brian C. Lockhart of counsel), for respondents.
Barry, McTiernan & Moore LLC, New York, NY (Laurel A. Wedinger of counsel), for appellants.
Levine & Grossman, Mineola, NY (Brian C. Lockhart of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Sher, J.), entered August 4, 2015, which denied that branch of their motion which was to compel the plaintiff Richard Winer to undergo a second independent medical examination, and referred to the trial court that branch of their motion which was, in effect, to preclude a missing witness charge against them for failing to call an examining physician.
ORDERED that the appeal from so much of the order as referred to the trial court that branch of the defendants' motion which was, in effect, to preclude a missing witness charge against them for failing to call an examining physician is dismissed; and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
A party may not appeal as of right from so much of an order as merely defers disposition of a motion until trial (see Kaplan v. Rosiello, 16 A.D.3d 626, 792 N.Y.S.2d 523 ; Weissman v. Weissman, 8 A.D.3d 264, 265, 777 N.Y.S.2d 679 ; J & A Vending v. J.A.M. Vending, 268 A.D.2d 504, 505, 701 N.Y.S.2d 670 ). Accordingly, the appeal from so much of the order as referred to the trial court that branch of the defendants' motion which was, in effect, to preclude a missing witness charge against them for failing to call an examining physician must be dismissed, as leave to appeal has not been granted (see Kaplan v. Rosiello, 16 A.D.3d at 627, 792 N.Y.S.2d 523 ).
Contrary to the defendants' contention, the Supreme Court providently exercised its discretion in denying that branch of their motion which was to compel the plaintiff Richard Winer (hereinafter the plaintiff) to undergo a second independent medical examination (hereinafter IME). “The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” (Mattocks v. White Motor Corp., 258 A.D.2d 628, 629, 685 N.Y.S.2d 764 [citation omitted]; see Tucker v. Bay Shore Stor. Warehouse, Inc., 69 A.D.3d 609, 609–610, 893 N.Y.S.2d 138 ). Here, the defendants failed to demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify a second IME of the plaintiff (see 22 NYCRR 202.21 [d]; Giordano v. Wei Xian Zhen, 103 A.D.3d 774, 775, 959 N.Y.S.2d 545 ; cf. Bermejo v New York City Health & Hosps. Corp., 135 A.D.3d 116, 21 N.Y.S.3d 78 ).
RIVERA, J.P., CHAMBERS, ROMAN and LaSALLE, JJ., concur.