Spano v Omni Eng'g, LLC
Annotate this CaseDecided on July 21, 2009
Supreme Court, Westchester County
Maria Spano and VITO SPANO, Plaintiffs,
against
Omni Engineering, LLC and JASON D. OWENS, Defendants.
11447/06
SAFRANEK, COHEN & KROLIAN
Attorneys for Defendants
One Water Street
White Plains, NY 10601
CARUSO & DILLON, P.C.
Attorneys for Plaintiffs
100 Mamaroneck Avenue
Mamaroneck, NY 10543
Alan D. Scheinkman, J.
Plaintiffs commenced the present action to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident that occurred on December 14, 2005. It is undisputed that at the time that the Trial Readiness Conference was held [Colabella, J. 12/2/2008], the Court was informed that all discovery was complete except for Defendants' examination before trial and Plaintiff's independent medical examination. While it appears that the Court told counsel to "work out the discovery", approximately one week later, on December 8, 2008, the Court (Colabella, J.) issued a Trial Readiness Order, certifying that discovery had been completed or waived and directing that no further discovery would be permitted except upon motion and a showing "of compelling and unanticipated circumstances".
Pursuant to the Trial Readiness Order, Plaintiffs served and, on December 29, 2008, filed a Note of Issue. Defendants did not take any action with respect to either the Trial Readiness Order or the Note of Issue.
Instead, according to Defendants' counsel, on January 7, 2009, Defendants' service sent a letter to Plaintiffs' attorney, purportedly scheduling a physical examination of Plaintiff for January 22, 2009. Defendants alleges that, on January 21, 2009, someone named "John" from the office of Plaintiffs' counsel called Defendants' service and advised that counsel had not yet spoken with Plaintiffs and, therefore, requested an adjournment. A new date of February 12, 2009 was selected, though it appears that this date was picked by the service and was not the product of an agreement between counsel. Though Plaintiffs' counsel was sent a confirmatory letter by Defendants' service, Plaintiff did not appear. Plaintiff's examination was rescheduled and, when despite a confirmatory letter to counsel, Plaintiff did not appear, the examination was rescheduled and another letter sent. This happened again. At this point, now in May, 2009, defense counsel began calling Plaintiffs' counsel and leaving messages. Finally, defense counsel met in person with Plaintiffs' counsel on June 18, 2009, and defense counsel stated that he would not permit a physical examination. The present motion was made on June 26, 2009. [*2]
Plaintiffs' counsel rejoins that, on December 2, 2008, defense counsel was advised to schedule the physical examination. He asserts that both sides knew that a deposition of Defendant would not be taken because the "Defendant driver" was no longer employed by Defendants and could not be found. He asserts that, thereafter, he received the Trial Readiness Order, called Defendants' attorney, and "implored" him to "designate an IME doctor" before Plaintiffs' time to file the Note of Issue expired. Plaintiffs' counsel asserts that defense counsel stated that he believed an examination had already been scheduled but would have a doctor designated "forthwith". Plaintiffs' counsel further states that he served and filed the Note of Issue on December 29, 2008, which was the last day for doing so under the Trial Readiness Order. According to Plaintiffs' counsel, a motion for partial summary judgment was made, that defense counsel requested an adjournment, and that, despite the adjournment, the motion was unopposed and was granted on default. He also asserts that he never made any promises or agreements whereby an examination would be conducted after the filing of the Note of Issue. He argues that the making of a motion to strike the Note of Issue some six months after it was served and filed "borders on the frivolous".
In reply, defense counsel asserts that Plaintiffs' counsel does not deny receipt of the letters scheduling the examination and does not deny that on January 21, 2009, Plaintiffs' counsel requested an adjournment of the examination, without advising that Plaintiff would refuse to participate in any examination.
Pursuant to 22 NYCRR §202.21(e), a party may move to vacate a note of issue and, if the motion is made within 20 days after service of the note of issue, the movant must show that the case is not ready for trial and that a material fact stated in the certificate of readiness is incorrect. However, after the 20 day period has expired, no such motion may be made except for good cause shown. On the other hand, pursuant to 22 NYCRR §202.21(d), the court may permit additional discovery, post-note of issue, where "unusual or unanticipated circumstances develop subsequent to the filing of the note of issue ... which require additional pretrial proceedings to prevent substantial prejudice". (See generally, Audiovox Corp. v Benyamini, 265 AD2d 135 [2d Dept 2000]).
Here, Defendants did not move within 20 days of service of the note of issue; the present motion was made some six months after service of the note of issue. Accordingly, Defendants are required to show that unusual or unanticipated circumstances developed after the filing of the note of issue (White v Mazella-White, 60 AD3d 1047 [2d Dept 2009]; Utica Mutual Ins. Co. v P.M.A. Corp., 34 AD3d 793 [2d Dept 2006]). A lack of diligence in seeking discovery does not constitute such circumstances (Colon v Jin, 45 AD3d 359 [1st Dept 2007]; Marks v Morrison, 275 AD2d 1027 [4th Dept 2000]).
Defendants contend that only 33 days lapsed between the holding of Plaintiff's deposition and the note of issue, while it is "almost standard" to allow 45 days after depositions to hold defense exams. But, even accepting this as so, the "almost standard" time had elapsed by the time that Defendants' time to move to vacate the note of issue expired. Further, Defendants' time to [*3]move to vacate the note of issue had already expired before Plaintiff canceled the examination scheduled for January 21, 2009. Further, it is undisputed that Plaintiffs' counsel alerted defense counsel to the need to act promptly to secure an examination even before the note of issue was served and filed.
Nevertheless, there is a line of authority holding that, where physical examinations are concerned, a party may be relieved of a waiver of its right to a physical examination where there is no prejudice to the other side, such as where the case remains on the trial calendar, where there would be prejudice if relief is not granted, and where the violation of the rules may be addressed through the payment of a monetary award (see, e.g., Narine v Hussain, 19 AD3d 665 [2d Dept 2005]; Williams v Long Island College Hospital, 147 AD2d 558 [2d Dept 1989]; Kanterman v Palmiotti, 122 AD2d 116 [2d Dept 1986]; see also Jones v Grand Opal Construction Corp., ___ AD3d ___, 2009 WL 1959241 [2d Dept 2009]).
Based upon the foregoing, and under the circumstances, the Court denies the branch of Defendants' motion as seeks to vacate the note of issue and to strike the case from the trial calendar but conditionally grants that branch of the motion that seeks to compel Plaintiff to submit to a physical examination by a physician of Defendants' selection. Plaintiff is directed to submit to such physical examination by not later than August 28, 2009, provided that Defendants pay Plaintiffs the sum of $500 on or before August 3, 2009. The examination shall proceed expeditiously at a time and place to be fixed in a written notice of not less than 10 days, to be given by Defendants, after payment of the $500, or at such other time and place as the parties may agree, but not later than August 28, 2009.
Th trial of this action is adjourned to September 15, 2009. The parties and counsel are
directed to appear in the Central Calendar Part, Courtroom 800, at 9:30 a.m.
Dated: White Plains, New York
July 21, 2009
Alan D. Scheinkman
J.S.C.
TO:
SAFRANEK, COHEN & KROLIAN
Attorneys for Defendants
One Water Street
White Plains, NY 10601
CARUSO & DILLON, P.C.
Attorneys for Plaintiffs
100 Mamaroneck Avenue
Mamaroneck, NY 10543
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