Villanueva v National Frgt., Inc.

Villanueva v National Frgt., Inc. 2023 NY Slip Op 00507 Decided on February 02, 2023 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 02, 2023
Before: Kapnick, J.P., Friedman, Gesmer, Moulton, Mendez, JJ.
Index No. 36262/17 Appeal No. 17230 Case No. 2022-03401

[*1]Carlos Villanueva, Plaintiff-Respondent,

v

National Freight, Inc., Defendant-Appellant.

Fishman McIntyre Levine Samansky P.C., New York (Scott A. Grossman of counsel), for appellant.

Russo Law LLP, New York (Richard Russo of counsel), for respondent.

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about July 15, 2022, which denied defendant's motion to compel plaintiff to submit to a post-note of issue independent medical examination, unanimously affirmed, without costs.

The motion court providently determined that defendant failed to show "unusual or unanticipated circumstances" that would warrant post-note of issue discovery (see 22 NYCRR 202.21[d]; see also Drapper v Horan, 164 AD3d 1192, 1993 [1st Dept 2018]; Madison v Sama, 92 AD3d 607, 607 [1st Dept 2012]). The substitution of defendant's counsel, which occurred after the note of issue was filed, does not constitute "unusual or unanticipated circumstances" under 22 NYCRR 202.21(d) (see Schroeder v IESI NY Corp., 24 AD3d 180 [1st Dept 2005]; Ward v City of Rensselaer, 106 AD2d 719, 721 [1st Dept 1984]). Moreover, defendant waived its right to conduct a post-note of issue medical examination of plaintiff by failing to comply with the deadlines set by the court in the multiple orders issued before and after his examination before trial (see Leon v St. Vincent De Paul Residence, 56 AD3d 265, 266 [1st Dept 2008]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 2, 2023