| Silverberg v Guzman |
| 2009 NY Slip Op 03503 [61 AD3d 955] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Alice Silverberg, Respondent, v Anamaria Guzman et al.,Appellants. |
—[*1] Beck & Strauss, PLLC, Uniondale, N.Y. (Leland Stuart Beck of counsel), forrespondent.
In an action to recover damages for medical malpractice, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Rosenberg, J.), datedJanuary 6, 2009, as denied that branch of their motion which was to compel the plaintiff tosubmit to a neuropsychological examination.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court did not improvidently exercise its discretion in denying that branch ofthe defendants' motion which was to compel the plaintiff to submit to a neuropsychologicalexamination, made more than six months after the note of issue had been filed. The recordsupports the conclusion that the defendants were aware from the outset of the litigation that themental state of the 80-year-old plaintiff was at issue, yet they did not request aneuropsychological examination until the instant motion. Moreover, on their motion, they failedto make any showing that "unusual or unanticipated circumstances" developed subsequent to thefiling of the note of issue (22 NYCRR 202.21 [d]; see 22 NYCRR 202.21 [e]; Marksv Morrison, 275 AD2d 1027 [2000]; Audiovox Corp. v Benyamini, 265 AD2d 135,138 [2000]). Rivera, J.P., Dillon, Covello and Eng, JJ., concur.