Streicker v. Adir Rent A Car Inc.

279 A.D.2d 385, 719 N.Y.S.2d 562, 2001 N.Y. App. Div. LEXIS 664

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 2001
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about May 17, 2000, which denied plaintiffs motion for summary judgment on liability and granted defendants’ motion to compel plaintiff to submit to additional physical examinations, unanimously affirmed, without costs.

Summary judgment was properly denied, there being issues of fact as to whether defendant driver was faced with an emergency, and, if so, whether his actions were reasonable within that context (see, Kuci v Manhattan & Bronx Surface Tr. Operating Auth., 88 NY2d 923). The motion court also properly directed plaintiff to submit to physical examinations by an orthopedist and rehabilitation-medicine specialist, even though she had already submitted to an examination by a neurologist, where the injuries she claims are both orthopedic and neurologic in nature and allegedly will interfere with her pursuit of an architectural career, and it does not appear that her prosecution of the action will be prejudiced by the additional examinations (see, Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 168 AD2d 376). We would also note prejudice caused to defendants by plaintiffs failure to timely and formally object to their notice, which demanded all three examinations, in the manner required by CPLR 3122 (a). Had plaintiff made known her objection to being examined by more than one of the specialists listed on the notice before her examination by the neurologist was conducted, defendants would not have lost the opportunity to decide which of the three specialists they wanted. Concur — Williams, J. P., Andrias, Lerner, Saxe and Buckley, JJ.