Lardiere v Site 6 DSA Owner LLC

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Lardiere v Site 6 DSA Owner LLC 2021 NY Slip Op 31599(U) May 11, 2021 Supreme Court, New York County Docket Number: 153260/2018 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 153260/2018 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 05/11/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ARLENE P. BLUTH Justice ---------------------------------------------------------------------------------X ROSARIO LARDIERE, INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. IAS MOTION 14 153260/2018 05/07/2021 002 -vSITE 6 DSA OWNER LLC,SITE 6 COMMERCIAL LLC,TACONIC INVESTMENT PARTNERS, L&M DEVELOPMENT PARTNERS, BFC PARTNERS, L.P, DELANCEY STREET ASSOCIATES LLC,NYU LANGONE HEALTH SYSTEM, HUNTER-ROBERTS CONSTRUCTION GROUP, LLC,BFC PHASE 1 DSA LLC,THE PACE COMPANIES NEW YORK, INC.,PEEPELS MECHANICAL CORP., DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X SITE 6 DSA OWNER LLC, TACONIC INVESTMENT PARTNERS, L&M DEVELOPMENT PARTNERS, DELANCEY STREET ASSOCIATES LLC, NYU LANGONE HEALTH SYSTEM, HUNTER-ROBERTS CONSTRUCTION GROUP, LLC Third-Party Index No. 595818/2018 Plaintiff, -againstGIL-BAR INDUSTRIES, THE PACE COMPANIES NEW YORK INC., PEEPELS MECHANICAL CORP Defendant. --------------------------------------------------------------------------------X SITE 6 DSA OWNER LLC, SITE 6 COMMERCIAL LLC, TACONIC INVESTMENT PARTNERS, L&M DEVELOPMENT PARTNERS, DELANCEY STREET ASSOCIATES LLC, NYU LANGONE HEALTH SYSTEM, HUNTER-ROBERTS CONSTRUCTION GROUP, LLC, BFC PHASE 1 DSA LLC Second Third-Party Index No. 595217/2020 Plaintiff, -againstSITE SAFETY,LLC, MECHANICAL PIPING SOLUTIONS 153260/2018 LARDIERE, ROSARIO vs. SITE 6 DSA OWNER LLC Motion No. 002 1 of 5 Page 1 of 5 [* 2] INDEX NO. 153260/2018 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 05/11/2021 Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 194, 195, 196, 197, 198, 199, 200 were read on this motion to/for PSYCHIATRIC & PHYSICAL EXAM . The motion by various defendants for inter alia an order directing that plaintiff sit for a physical examination without an IME observer is denied. Background In this Labor Law action, plaintiff claims that he was hit in the head by a large pipe while working at a construction site. Defendants contend that plaintiff claims he suffered a traumatic brain injury and they designated Dr. Mills to conduct a forensic psychiatric evaluation of plaintiff. Dr. Mills maintains that he traveled from North Carolina to conduct the IME in March 2021 and that he was surprised to see that there were three people present for the evaluation, including plaintiff, plaintiff’s sister and an IME observer. Dr. Mills objected to the presence of a third-party for the evaluation. The IME observer claims he simply wanted to watch the exam and take notes. Before the exam commenced, the parties then engaged in a series of discussions about this person’s presence and reached out to the Court who informed the parties that the evaluation should proceed with the IME observer, but that the observer should not intervene in any way. Unfortunately, the IME did not proceed and defendants blame plaintiff for not returning for the evaluation that day. Defendants now seek to preclude the observer from being present for the observation and seek reimbursement for the expenses incurred (including Dr. Mills’ travel) related to the busted IME. 153260/2018 LARDIERE, ROSARIO vs. SITE 6 DSA OWNER LLC Motion No. 002 2 of 5 Page 2 of 5 [* 3] INDEX NO. 153260/2018 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 05/11/2021 Discussion “It is well established that a plaintiff is entitled to have a representative of her choice present during the IME, provided the individual does not interfere with the IME or prevent the defendant's doctor from conducting ;a meaningful examination’”(Markel v Pure Power Boot Camp, Inc., 171 AD3d 28, 29, 96 NYS3d 187 [1st Dept 2019]). “No special or unusual circumstances need be shown in order for the IME observer to be present during the examination. IME observers or “watchdogs” are typically hired by plaintiff's lawyers to assist their clients in filling out forms at the examining doctor's office. More importantly, according to plaintiff, the presence of an IME observer deters examining doctors hired by defendants from inquiring about matters beyond the scope of the particular action and keeps the IME process honest” (id. at 30). Plaintiff was clearly entitled to have a representative at the IME as long as the representative did not interfere with the examination. Here, there is no allegation that the IME observer did anything to obstruct the exam because the exam never began. Instead, it appears that Dr. Mills (apparently unfamiliar with New York practice) objected to the observer’s presence. While that objection is understandable given that Dr. Mills is of the opinion that having an observer present alters the results, the fact is that in New York, observers are allowed and this is a New York litigation. There is no basis for this Court to bar plaintiff from having the observer present at the future IME. This is not a case where the observer fed plaintiff answers or tried to prevent the doctor from asking questions – the exam had not even started. The Court also denies defendants’ request for reimbursement related to the busted IME. According to defendants’ own account of the events, it was Dr. Mills who set in motion the disagreement. Plaintiff arrived early ready to do the exam. While the Court questions why 153260/2018 LARDIERE, ROSARIO vs. SITE 6 DSA OWNER LLC Motion No. 002 3 of 5 Page 3 of 5 [* 4] INDEX NO. 153260/2018 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 05/11/2021 plaintiff left, the Court also recognizes that plaintiff apparently showed up for the 9:00 am exam by 8:45 and the exam had not started by 10:45 (while the attorneys fought about the IME observer’s presence). Moreover, defendants chose an expert who lives in North Carolina and apparently did not tell Dr. Mills that an observer is allowed to be present but not actively interfere. Defendants are entitled to pick whichever doctor they prefer but picking an out-ofstate doctor who has to fly in for an exam has risks. One of those risks is that the exam, for whatever reason, may not go forward or not be completed and defendants might have higher travel expenses. The Court declines to grant the alternative relief sought by defendants, which seems to demand an order restricting the actions of the observer. As stated above, the IME observer is permitted to be present and must comply with established caselaw stating that he or she cannot interfere with the doctor’s exam. The Court will not issue an advisory opinion about which actions are permitted and which are not, especially where those actions are not in dispute. In other words, there is no basis to bar the IME observer from doing something he did not do. Finally, the Court notes that at no time during the conference that day was this Court made aware that Dr. Mills refused to commence the exam. The Court was under the impression that the IME watchdog was, in Dr. Mills’ opinion, acting inappropriately. And that is why the Court advised that a motion be brought, so the people who were there could swear to what happened. Accordingly, it is hereby ORDERED that the motion by defendants to bar plaintiff from having an IME observer is denied in its entirety and it is further 153260/2018 LARDIERE, ROSARIO vs. SITE 6 DSA OWNER LLC Motion No. 002 4 of 5 Page 4 of 5 [* 5] INDEX NO. 153260/2018 NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 05/11/2021 ORDERED that the part of the motion seeking an order requiring plaintiff to pay the expenses of the failed IME is denied. Already Scheduled Remote Conference: November 4, 2021 at 9:30 a.m. The parties may seek to advance the conference if necessary. 5/11/2021 DATE CHECK ONE: $SIG$ ARLENE P. BLUTH, J.S.C. CASE DISPOSED GRANTED X X DENIED NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 153260/2018 LARDIERE, ROSARIO vs. SITE 6 DSA OWNER LLC Motion No. 002 5 of 5 OTHER REFERENCE Page 5 of 5

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