| Stock v Morizzo |
| 2012 NY Slip Op 00952 [92 AD3d 672] |
| February 7, 2012 |
| Appellate Division, Second Department |
| Katharine Stock et al., Respondents, v Nichol Morizzo,Doing Business as Village Hair Studio, et al., Defendants, and Mr. Beauty Equipment, Ltd.,Appellant. (And Third-Party Actions.) |
—[*1] Dubow, Smith & Marothy, Bronx, N.Y. (Steven J. Mines of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant Mr. BeautyEquipment, Ltd., appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.),dated May 31, 2011, which denied its renewed motion to compel the plaintiff Katharine Stock tosubmit to an independent neuropsychiatric examination.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the renewed motion of the defendant Mr. Beauty Equipment, Ltd., to compel the plaintiffKatharine Stock to submit to an independent neuropsychiatric examination is granted.
The Supreme Court, in its discretion, may 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 that requireadditional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21 [d]; see Lopez v Retail Prop. Trust, 84AD3d 891 [2011]; Wigand vModlin, 82 AD3d 1213 [2011]; Owen v Lester, 79 AD3d 992 [2010]; Audiovox Corp. vBenyamini, 265 AD2d 135, 140 [2000]). Here, more than two years after the filing of thenote of issue and certificate of readiness, the plaintiffs served a neuropsychiatric report, whichalleged that the injured plaintiff suffered from new or additional psychiatric injuries and that herpsychological injuries had dramatically changed. Under these circumstances, the appellantdemonstrated that "unusual or unanticipated circumstances" developed subsequent to the filing ofthe note of issue and certificate of readiness, justifying a neuropsychiatric examination of theinjured plaintiff (see Sorrentino vFedorczuk, 85 AD3d 759, 760 [2011]; Singh v 244 W. 39th St. Realty, Inc., 65 AD3d 1325, 1326 [2009];Karakostas v Avis Rent A Car Sys., 306 AD2d 381, 382 [2003]; Huggins v NewYork City Tr. Auth., 225 AD2d 732, 733 [1996]). Accordingly, the Supreme Court shouldhave granted the appellant's renewed motion to compel the injured plaintiff to submit to anindependent neuropsychiatric examination.[*2]
We have not considered the appellant's contention thatthe injured plaintiff should also be compelled to submit to an additional deposition, which wasimproperly raised for the first time in reply papers, and not considered by the Supreme Court (see Encarnacion v Smith, 70 AD3d628, 629 [2010]; Goldstein v Haberman, 183 AD2d 807 [1992]), Skelos, J.P.,Dickerson, Hall, Roman and Cohen, JJ., concur.