Kattaria v. Rosado

2017 NY Slip Op 91, 146 A.D.3d 457, 43 N.Y.S.3d 758

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 5, 2017
• Docket: 302629/13 2665N 2664
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about September 14, 2015, which to the extent appealed from as limited by the briefs, granted defendant’s motion to direct plaintiff to resubmit to a medical examination by defendant’s designated physician, and order, same court and Justice, entered February 25, 2016, which granted defendant’s motion for a protective order to compel plaintiff to attend the independent medical examination by defendant’s designated physician and to exclude nonattorneys from the exam, unanimously affirmed, without costs.

The motion court providently exercised its discretion when it granted defendant’s timely motion directing plaintiff to resubmit to a medical examination by defendant’s designated physician, post-note of issue, in accordance with 22 NYCRR 202.21 (e) (see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]), and defendant did not need to prove “unusual or unanticipated circumstances” as required pursuant to 22 NYCRR 202.21 (d) (see Audiovox Corp. v Benyamini, 265 AD2d 135, 138-139 [2d Dept 2000]).

The motion court also providently exercised its discretion in barring plaintiff’s nonlegal representative from the medical examination, as plaintiff did not timely object to defendant’s notice of physical examination in accordance with CPLR 3121 and 3122, and as plaintiff failed to demonstrate “special and unusual circumstances” warranting the nonlegal representative’s presence (see Bermejo v New York City Health & Hosps. Corp., 135 AD3d 116, 145 [2d Dept 2015]; Cooper v McInnes, 112 AD3d 1120, 1121 [3d Dept 2013]; Mertz v Bradford, 152 AD2d 962 [4th Dept 1989]).

Concur — Acosta, J.P., Maz-zarelli, Andrias, Feinman and Webber, JJ.