| Manzo v City of New York |
| 2009 NY Slip Op 04207 [62 AD3d 964] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Mario Manzo, Appellant, et al., Plaintiff, v City of NewYork et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andElizabeth S. Natrella of counsel), for respondents.
In a consolidated action, inter alia, to recover damages for personal injuries, the plaintiffMario Manzo appeals from so much of an order of the Supreme Court, Kings County (Miller, J.),dated September 17, 2008, as granted that branch of the defendants' motion which was to compelhim to submit to an additional physical examination.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, with costs, and that branch of the defendants' motion which was to compel theplaintiff Mario Manzo to submit to an additional physical examination is denied.
Five months after service of the injured plaintiff Mario Manzo's supplemental bill ofparticulars, the defendants moved, inter alia, to compel him to appear for an additional physicalexamination. The Supreme Court granted that branch of the defendants' motion.
The defendants waived their right to conduct an additional physical examination of theinjured plaintiff when they failed to move to vacate the note of issue within 20 days after serviceof the note of issue and the certificate of readiness (see 22 NYCRR 202.21 [e]; Jamesv New York City Tr. Auth., 294 AD2d 471, 472 [2002]; Schenk v Maloney, 266AD2d 199, 200 [1999]; Gill v United Parcel Serv., 249 AD2d 265, 266 [1998]). Whilethe Supreme Court may, in its discretion, grant permission to conduct additional discovery afterthe filing of a note of issue and certificate of readiness where the moving party demonstrates that"unusual or unanticipated circumstances" developed subsequent to the filing requiring additionalpretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21 [d]; see James vNew York City Tr. Auth., 294 AD2d at 472; Audiovox Corp. v Benyamini, 265AD2d 135, 140 [2000]), here, the defendants failed to establish any unusual or unanticipatedcircumstances subsequent to the filing of the note of issue and certificate of readiness that wouldwarrant an additional physical examination of the injured plaintiff (see 22 NYCRR202.21 [d]; James v New York City Tr. Auth., 294 AD2d at 472). Accordingly, thatbranch of the defendants' motion which was to compel an additional physical examination of theinjured plaintiff should have been denied. Skelos, J.P., Florio, Balkin and Belen, JJ., concur.