Hartnett v. City of New York

139 A.D.3d 506, 30 N.Y.S.3d 540

Opinion

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered April 15, 2015, which granted the motion of defendant Black Seal Realty Corp. (Black Seal) to compel plaintiff to appear for an orthopedic physical examination, unanimously affirmed, without costs.

Plaintiff’s service of an expert disclosure statement after the filing of the note of issue presented new and unanticipated claims that plaintiff’s ankle condition might warrant further aggressive medical intervention, including ankle fusion or ankle replacement procedures, resulting in appreciably greater medical and economic costs than initially alleged, as well as potentially greater disability and attendant restrictions on every day living. This constituted the requisite “unusual or unanticipated circumstances,” as well as “substantial prejudice,” needed to be shown to warrant the court, in a provident exercise of discretion, to grant of Black Seal’s post-note of issue discovery request (see 22 NYCRR 202.21 [d]; CPLR 3101 [d] [1] [i]; Bermel v Dagostino, 50 AD3d 303 [1st Dept 2008]; Esteva v Catsimatidis, 4 AD3d 210 [1st Dept 2004]; Karakostas v Avis Rent A Car Sys., 306 AD2d 381 [2d Dept 2003]).

Concur — Mazzarelli, J.P, Moskowitz, Manzanet-Daniels and Gesmer, JJ.