Cabrera v. Abaev

2017 NY Slip Op 4084, 150 A.D.3d 588, 55 N.Y.S.3d 207

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2017
• Docket: 4088N 4087
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about January 9, 2017, which, to the extent appealed from as limited by the briefs, granted defendants-respondents’ post-note of issue motion to compel plaintiff to appear for independent medical examinations, unanimously affirmed, without costs.

“Trial courts are authorized, as a matter of discretion, to permit post-note of issue discovery without vacating the note of issue, so long as neither party will be prejudiced” (Cuprill v Citywide Towing & Auto Repair Servs., 149 AD3d 442, 443 [1st Dept 2017]). We perceive no prejudice here, as the matter remains on the trial calendar (see Suarez v Shapiro Family Realty Assoc., LLC, 149 AD3d 526 [1st Dept 2017]; see e.g. Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 168 AD2d 376, 376-377 [1st Dept 1990]). Moreover, the court providently exercised its discretion in directing plaintiff to appear for the medical examinations, given defendants’ short delay in designating the physicians (see Henderson-Jones v City of New York, 104 AD3d 411 [1st Dept 2013]).

Concur— Friedman, J.P., Moskowitz, Feinman, Gische and Kahn, JJ.