De Sanchez v. Trevz Trucking LLC

124 A.D.3d 527, 998 N.Y.S.2d 626

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 2015
• Docket: 14020 310658/11
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered October 25, 2013, which, to the extent appealed from as limited by the briefs, denied defendants-appellants’ motion for an order compelling plaintiff to submit to an independent neurological examination after the note of issue was filed, unanimously affirmed, without costs.

Defendants failed to demonstrate that they conferred with plaintiffs counsel in a good faith effort to resolve the disclosure issues raised by the motion, or that there was “good cause why no such conferral . . . was held” (Uniform Rules for Trial Cts [22 NYCRR] § 202.7 [a] [2]; [c]; see 241 Fifth Ave. Hotel, LLC v GSY Corp., 110 AD3d 470, 471-472 [1st Dept 2013]; Martinez v 1261 Realty Co., LLC, 121 AD3d 955, 956-957 [2d Dept 2014]). Under the circumstances, including that defendants’ orthopedic expert addressed all of plaintiffs claimed injuries in his report and examination, and the fact that plaintiff appeared twice for the scheduled examination but the defendants’ expert refused to conduct the exam due to defendants’ failure to have an interpreter present, the court providently exercised its discretion in determining that defendants waived their right to conduct a neurological examination by failing to make arrangements necessary to perform the exam within the extended deadline set by the compliance conference order (see Colon v Yen Ru Jin, 45 AD3d 359 [1st Dept 2007]; Rosenberg & Estis, P.C. v Bergos, 18 AD3d 218 [1st Dept 2005]).

Concur — Tom, J.E, Acosta, Saxe, Moskowitz and Feinman, JJ.