Salazar v 808 8th Ave. Tenant's Corp.
Annotate this CaseDecided on November 16, 2004
Supreme Court, Kings County
Carmen Salazar, Plaintiff,
against
808 8th Avenue Tenant's Corp., 808 REALTY LLC., AND 808 RLTY COMPANY, A NEW YORK GENERAL PARTNERSHIP, ELAINE COHEN AND AVI COHEN, PARTNERS, Defendants.
48458/02
Howard A. Ruditzky, J.
the motion by defendants 808 8th Avenue Tenants Corp., 808 Realty LLC and 808 Realty Company, a New York General Partnership, for an order striking the note of issue of plaintiff Carmen Salazar and compelling her to respond to defendants' Demand for Authorization dated June 16, 2004 and to submit to a further medical examination is hereby granted only to the extent of directing plaintiff to provide an [*2]authorization for an ambulance call report within 20 days after service of a copy of this order with notice of entry.
This action arises out of an alleged fall by plaintiff on May 15, 2002 at premises owned or managed by defendants.
In their motion, defendants explain that they have not received an authorization to obtain the report of the ambulance service which transported plaintiff from the accident scene to the hospital, notwithstanding their request therefor. Defendants also seek a further examination of plaintiff by a specialist in Reflex Dystrophy Sympathy ("RSD"), an injury alleged by plaintiff in her bill of particulars. Because "placing this matter on the trial calendar prior to defendants having ample opportunity to conduct discovery is improper and extremely prejudicial," they contend that the note of issue should be stricken.
In opposition to the motion, plaintiff argues that defendants' time to seek discovery has long since passed. She points out that compliance conferences were held on February 6, 2004 and May 3, 2004 and "at no time . . . did the defendants seek the additional physical or other discovery they now seek." Plaintiff adds that "[n]othing new has transpired since those conferences. No new injury has been claimed." Plaintiff asserts that, following a settlement conference, defendant's attorneys realized, for the first time, the seriousness of plaintiff's RSD claim and requested a copy of the ambulance call report or authorization therefor.
In reply, defendants note that "an ambulance call report is considered to be part of plaintiff's 'medical' records" and that, although plaintiff provided an authorization for medical records, there was no authorization for an ambulance call report. Defendants point out that the ambulance call report was not contained in any of the medical records obtained by them and that plaintiff included a claim for expenses for ambulance services in a supplemental bill of particulars, dated January 20, 2004.
Contrary to plaintiff's contention, Rodriguez v Lau (298 AD2d 376 [2002]), James v New York City Tr. Auth. (294 AD2d 471 [2002] and Gill v United Parcel Service, Inc. (249 AD2d 265 [1998]) are inapposite because the issue in this case is not whether defendants waived their right to conduct a physical examination by failing to arrange for such examination within the period set forth in a discovery order, but whether they are entitled to an additional examination at this late date.[FN1]
Generally, once a note of issue has been filed, a defendant must demonstrate that unusual or special circumstances developed subsequent to the filing of the note of issue to justify an additional examination (see 22 NYCRR 202.21; Futersak v Brinen, 265 AD2d 452 [1999]). However, it is undisputed that defendants' demand for a further examination was made two days prior to the filing of the note of issue herein and, therefore, the question is whether defendant has demonstrated the necessity for an additional examination (see [*3]Huggins v New York City Tr. Auth., 225 AD2d 732 [1996]). Under the circumstances, defendants has not made such a showing. It appears that plaintiff alleged in her bill of particulars, dated April 16, 2003, that she sustained an RSD injury to her right shoulder as a result of the accident. It is also apparent that Dr. Michael Marrone, an orthopedist who examined plaintiff on defendants' behalf on March 15, 2004, was aware of the injuries alleged in the bill of particulars prior to his examination and noted that "[m]otion at the right shoulder is accompanied by discomfort." Accordingly, that branch of the motion which seeks a further physical examination is hereby denied.
Since plaintiff's claim for expenses for ambulance services was first made known in her supplemental bill of particulars of January 20, 2004, the Court sees no prejudice to plaintiff in directing her to provide an authorization for the ambulance call report. Because discovery is substantially complete, that branch of the motion which seeks an order striking the note of issue is hereby denied.
The foregoing constitutes the decision and order of the Court.
E N T E R,
Dated: November 16, 2004__________________
J. S. C.
Footnotes
Footnote 1: It is also noted that defendants did, in fact, move to vacate the note of issue within 20 days of its filing.
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