Jackson v New York City Tr. Auth.

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Jackson v New York City Tr. Auth. 2023 NY Slip Op 32940(U) August 25, 2023 Supreme Court, New York County Docket Number: Index No. 158016/2019 Judge: Denise M. Dominguez 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. INDEX NO. 158016/2019 RECEIVED NYSCEF: 08/25/2023 NYSCEF DOC. NO. 197 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DENISE M DOMINGUEZ 21 Justice ----------------------------------------------- .---------------------------------X DENNIS JACKSON, INDEX NO. MOTION SEQ. NO. 158016/2019 003 Plaintiff, -vNEW YORK CITY TRANSIT AUTHORITY, MTA BUS COMPANY, JOHN OR JANE DOE, WAYNE MEADOWS, DECISION+ ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X NEW YORK CITY TRANSIT AUTHORITY, MTA BUS COMPANY Third-Party Index No. 595123/2020 Third-Party Plaintiffs, -againstWAYNE MEADOWS, AV ANT BUSINESS SERVICE CORPORATION Third-Party Defendants. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127 were read on this motion to/for DISCOVERY Upon the foregoing documents, and upon hearing oral arguments, Defendants/Third-Party Plaintiffs NEW YORK CITY TRANSIT AUTHORITY and MTA BUS COMPANY's ("TRANSIT") motion to preclude the Plaintiff from offering any evidence of injury related to the cervical spine, or alternatively, compelling Plaintiff to appear for a further independent medical examination ("IME") with Dr. Paul Kuflik, is denied in part and granted in part. This personal injury action arises out of a December 13, 2018 incident which is alleged to have occurred on 2nd Avenue at or near its intersection with East 34th Street, in Manhattan, when the Plaintiff claims to have a been a passenger in a vehicle which was struck by the Defendants' bus. 158016/2019 JACKSON, DENNIS vs. NEW YORK CITY TRANSIT Motion No. 003 [* 1] 1 of 5 Page 1 of 5 INDEX NO. 158016/2019 RECEIVED NYSCEF: 08/25/2023 NYSCEF DOC. NO. 197 TRANSIT's prior motion seeking the same relief (Motion Seq. 2), was denied without prejudice, due to a procedural defect, by Order of this Court dated November 9, 2022 (NYSCEF Doc 121). Accordingly, this motion will be addressed on the merits. Upon review, during the course of discovery in this matter, the Plaintiff testified at his 50h hearing and subsequent deposition concerning his claims of neck pain and various treatment, including diagnostic imagery (NYSCEF Doc 98, 112). The Plaintiff alleged various claims as to his cervical spine in his bill of particulars (NYSCEF Doc 111 ). At some point following the service of the bill of particulars, the Plaintiff apparently underwent surgery to his cervical spine. Same was disclosed to this Court and the parties in February 2022. However, to date the Plaintiff has apparently not served a supplemental bill of particulars as to the cervical spine surgery. In connection with the ongoing discovery process in this matter, the Plaintiff appeared for an IME with Dr. Kuflik on March 9, 2022. Pursuant to Dr. Kuflik's report, Eduardo Bonilla, the representative on behalf of the Plaintiff, who accompanied the Plaintiff to the IME, refused to allow Dr. Kuflik to examine the Plaintiff's cervical spine. (NYSCEF Doc 119). As per Dr. Kuflik's report, the representative also provided Dr. Kuflik from asking basic questions in connection with the examination, such as how the Plaintiff became injured. Although it appears that questions concerning the treatment to the lumbar spine were permitted, no such questions were permitted regarding the cervical spine. In his affidavit (initially submitted in opposition to the Defendants' prior motion, Motion Seq. 2) the representative acknowledged that he objected and prevented the Plaintiff from answering Dr. Kuflik's questions at the IME and disagreed with Dr. Kuflik's impression of what transpired at the IME. (NYSCEF Doc 120). "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 A.D.3d 28, 29, 96 N.Y.S.3d 187, 188 [1st Dept 2019]; quoting Santana v. Johnson, 154 A.D.3d 452,452, 60 N.Y.S.3d 831, 832 [1st Dept 2017]). Here, pursuant to the Plaintiff's bill of particulars and testimony in this matter, it is clear that claims concerning the cervical spine have been made. Thus, the Defendants are entitled to any and all medical records concerning such treatment, authorizations permitting the release of such records as well as an IME of the cervical spine. It is also clear that the Defendants duly noticed the IME of the cervical, and lumbar spine. Additionally, it is clear that the Plaintiff's representative 158016/2019 JACKSON, DENNIS vs. NEW YORK CITY TRANSIT Motion No. 003 [* 2] 2 of 5 Page 2 of 5 INDEX NO. 158016/2019 RECEIVED NYSCEF: 08/25/2023 NYSCEF DOC. NO. 197 interfered with the IME; Dr. Kuflik was prevented from conducting a full and complete examination of the cervical spine at the March 9, 2022 IME and was prevented from asking basic questions regarding how the Plaintiffs lumbar and cervical injuries occurred. Therefore, upon review, in light of the circumstances, TRANSIT has shown the necessity for a further IME related to the cervical spine. (See Chaudhary v. Gold, 83 A.D.3d 477,478, 921 N.Y.S.2d 219 [1st Dept 2011]; Orsos v. Hudson Transit Corp., 95 A.D.3d 526,944 N.Y.S.2d 514 [1st Dept 2012]). The Plaintiff is directed to provide any and all copies of the Plaintiffs medical records related to cervical spine treatment arising out of the subject accident to the Defendants and ThirdParty Defendants by September 15, 2023 as well as HIP AA authorizations for the parties to obtain such records directly from the providers. Plaintiff is also directed to appear for a further IME by Dr. Kuflik which is to concern the examination of the cervical spine. Dr. Kuflik is also permitted to ask relevant questions concerning the cervical spine injuries and treatment as were asked and answered regarding the lumbar spine, which is reflected in Dr. Kuflik's report (NYSCEF Doc 119). Dr. Kuflik is also permitted to ask the question related to how the injuries to the lumbar and cervical spine were sustained, which was previously prevented by the prior representative as such a basic question is relevant to the Plaintiff's medical treatment and condition and as there is no evidence that such question was asked to address aspects ofliability. (see generally Berrios v. 735 Ave. of the Americas, LLC, 103 A.D.3d 472,959 N.Y.S.2d 477 [1st Dept 2013]). The IME is to be held by December 31, 2023. Due to his prior obstruction, the Plaintiff is also directed not to send Mr. Bonilla as a representative to the further IME. However, the Plaintiff is still entitled to attend the IME with a different representative on his behalf and that representative shall not interfere with or prevent the cervical spine examination. Additionally, if the Plaintiff intends to allege that the cervical spine surgery is connected to the subject accident, if not already done, the Plaintiff is directed to serve a supplemental bill of particulars by September 15, 2023 asserting same. Plaintiff is also directed to provide any and all copies of the Plaintiff's medical records related to cervical spine surgery, including pre and post operative treatment, to the Defendants and Third-Party Defendants by September 15, 2023 as well as authorizations permitting the release of such records. If the Defendants and Third-Party Defendants seek a further deposition of the Plaintiff, limited to the cervical spine surgery, they are 158016/2019 JACKSON, DENNIS vs. NEW YORK CITY TRANSIT Motion No. 003 [* 3] 3 of 5 Page 3 of 5 INDEX NO. 158016/2019 RECEIVED NYSCEF: 08/25/2023 NYSCEF DOC. NO. 197 to advise the Plaintiff in writing by September 22, 2023 and the deposition is to be held by November 30, 2023. If the Plaintiff does not intend to allege the cervical spine surgery is connected to the subject accident, the Plaintiff is to apprise the parties in writing by September 15, 2023. If the Plaintiff fails to advise the parties as to whether the cervical spine surgery will be claimed in this matter, the Plaintiff may be precluded from introducing such evidence at the time of trial upon further application to the Court. Although it was clearly improper to have prevented the examination of the cervical spine, at this time, this Court denies TRANSIT' s request for the Plaintiff to bear the cost of the further IME. However, the Court may entertain such relief in the future if the further IME is not conducted as set forth herein. Accordingly, it is hereby ORDERED that the Defendants/Third-Party Plaintiffs NEW YORK CITY TRANSIT AUTHORITY and MTA BUS COMPANY's motion to preclude the Plaintiff from presenting evidence at the time of trial related to the cervical spine claims is denied; and it is further ORDERED that the Defendants/Third-Party Plaintiffs NEW YORK CITY TRANSIT AUTHORITY and MTA BUS COMPANY's motion to compel the Plaintiff to appear for a further IME related to the cervical spine is granted to the extent as set forth above; and it is further ORDERED that the Plaintiff is directed to provide the Defendants/Third Party Defendants the medical records and authorizations and advise as to whether the cervical spine surgery will be claimed in this matter, as set forth above; and it is further ORDERED that the Defendants/Third Party Defendants are directed to advise the Plaintiff if a further deposition is requested, as outlined above; and it is further ORDERED that, within 15 days from the entry of this order, movant shall serve a copy of this order with notice of entry on all parties and upon the Clerk of the General Clerk's Office, who is hereby directed to strike the case from the trial calendar and make all required notations thereof in the records of the court; and it is further 158016/2019 JACKSON, DENNIS vs. NEW YORK CITY TRANSIT Motion No. 003 [* 4] 4 of 5 Page 4 of 5 INDEX NO. 158016/2019 NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 08/25/2023 ORDERED that such upon the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website)]. Any requested relief not expressly addressed herein has nonetheless been considered by the Court and is hereby expressly denied. \ 8/25/2023 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: DENISE M DOMINGUEZ, J.S.C. ~ CASE DISPOSED GRANTED NON-FINAL DISPOSITION DENIED SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 158016/2019 JACKSON, DENNIS vs. NEW YORK CITY TRANSIT Motion No. 003 [* 5] GRANTED IN PART 5 of 5 REFERENCE Page 5 of 5

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