| Wigand v Modlin |
| 2011 NY Slip Op 02654 [82 AD3d 1213] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Bridget Wigand, Appellant, v Saul Modlin,Respondent. |
—[*1] Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling of counsel), forrespondent.
In an action to recover damages for medical malpractice and lack of informed consent, theplaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, NassauCounty (Murphy, J.), dated July 20, 2009, as, in effect, upon reargument, adhered to its priordetermination in an order of the same court dated April 16, 2009, granting that branch of thedefendant's motion which was to direct the plaintiff to appear for an independent medicalexamination.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and, uponreargument, the determination in the order dated April 16, 2009, is vacated, and that branch ofthe defendant's motion which was to direct the plaintiff to appear for an independent medicalexamination is denied.
In this action to recover damages for medical malpractice and lack of informed consent, thedefendant moved, on the eve of trial, inter alia, to direct the plaintiff to appear for an independentmedical examination (hereinafter IME). Thereafter, the Supreme Court issued a written orderdated April 16, 2009, which, among other things, directed the plaintiff to appear for the IME. Theplaintiff then moved, in effect, for leave to reargue her opposition to that branch of thedefendant's motion which was to direct her to appear for the IME. Upon reargument, theSupreme Court adhered to its prior determination. We reverse the order insofar as appealed from.
The Supreme Court may, in its discretion, grant permission to conduct additional discoveryafter the filing of a note of issue and certificate of readiness where the moving party demonstratesthat "unusual or unanticipated circumstances" developed subsequent to the filing, requiringadditional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21 [d]; seeOwen v Lester, 79 AD3d 992 [2010]; Audiovox Corp. v Benyamini, 265 AD2d 135,140 [2000]). However, the Supreme Court erred in adhering to its determination granting thatbranch of the defendant's motion, made on the eve of trial, which was to direct the plaintiff toappear for an IME. The defendant failed to offer evidence of unusual or unanticipatedcircumstances that developed subsequent to the filing of the note of issue and certificate ofreadiness to justify relieving him of the consequences of his failure to conduct a timely medicalexamination of the plaintiff (see Owen v Lester, 79 AD3d 992 [2010]; Manzo v Cityof New York, 62 AD3d 964, 965 [2009]; Audiovox Corp. v Benyamini, 265 AD2dat 138).[*2]
Accordingly, upon reargument, that branch of thedefendant's motion which was to direct the plaintiff to appear for an IME should have beendenied. Mastro, J.P., Leventhal, Hall and Lott, JJ., concur.