Urena v. Bruprat Realty Corp.

179 A.D.2d 505, 579 N.Y.S.2d 28, 1992 N.Y. App. Div. LEXIS 472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1992
• Status: Published

Opinions

This action was instituted to recover damages for personal injuries sustained by the infant plaintiff after falling from a window of his apartment. Approximately six months after a note of issue and certificate of readiness were filed, the defendants moved for an order directing the infant plaintiff to submit to a neurological examination.

While the failure to move to vacate a note of issue and certificate of readiness within 20 days of service generally constitutes a waiver of the right to conduct a subsequent physical examination where special circumstances or sufficient reason for the delay have not been established (22 NYCRR 202.21 [e]; Sewell v Singh, 160 AD2d 592), where, as in the instant case, no prejudice would result, a party may be relieved of its waiver (Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 168 AD2d 376; Williams v Long Is. Coll. Hosp., 147 AD2d 558).

The plaintiffs alleged that the infant plaintiff sustained multiple injuries in the fall, including a blunt trauma injury to the head, a cerebral contusion causing organic brain syndrome, significant brain dysfunction, loss of consciousness, headaches, blurred vision, nausea, deafness, poor recall and an inability to understand. Clearly the need for a neurological examination has been established. Also to be noted is that the plaintiffs’ failure to provide the defendants with authorization to obtain the records of some of the infant plaintiff’s treating physicians contributed to the delay. In addition, granting the defendants’ request will not prejudice the plaintiffs since the matter remains on the trial calendar (Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., supra; Williams v Long Is. Coll. Hosp., supra). Concur — Sullivan, J. P., Carro and Rosenberger, JJ.