| Martinez v Murdock |
| 2013 NY Slip Op 07643 [111 AD3d 1443] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| Cipriana Martinez, Appellant, v William T. Murdock et al.,Respondents. (Appeal No. 1.) |
—[*1] Santacrose & Frary, Albany (Elise Cassar of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Oneida County (David A. Murad, J.),entered January 7, 2013. The order granted that part of defendants' motion to vacateplaintiff's note of issue and certificate of readiness.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for injuries shesustained when the vehicle in which she was a passenger was struck by a vehicle ownedby defendant Emily A. Murdock and operated by defendant William T. Murdock.Following the discovery of documents and the depositions of the parties, plaintiff serveddefendants on or about March 26, 2012 with a notice of availability for medicalexamination pursuant to 22 NYCRR 202.17 (notice), which set forth May 4, 2012 as thedate of plaintiff's availability for the medical examination. Defendants scheduled themedical examination for June 11, 2012, but plaintiff advised defendants that she wouldnot appear for it because the date was beyond the time frame of "not less than 30 normore than 60 days after service of th[e] notice," as set forth in 22 NYCRR 202.17 (a) andrecited in the notice. Plaintiff did not appear for the scheduled medical examination and,on July 6, 2012, filed her note of issue and certificate of readiness. In appeal No. 1,plaintiff appeals from an order granting that part of defendants' motion to vacate her noteof issue and certificate of readiness and, in appeal No. 2, plaintiff appeals from that partof an order granting those parts of the same motion for an order compelling plaintiff toappear for a medical examination and affording defendants an extension of time in whichto file any "dispositive motions."
We reject plaintiff's contention in appeal No. 1 that Supreme Court abused itsdiscretion in striking the note of issue and certificate of readiness. Pursuant to 22NYCRR 202.1 (b), the court "[f]or good cause shown, and in the interests of justice. . . may waive compliance with any of the rules in this Part, other thansections 202.2 and 202.3, unless prohibited from doing so by statute or by a rule of theChief Judge." We conclude that the court properly waived the time [*2]requirements of 22 NYCRR 202.17 (a) in the interests ofjustice because defendants established good cause by showing that the medicalexamination was scheduled to occur only 16 days after plaintiff's notice expired, andplaintiff did not establish that she was prejudiced by the extension of time (seegenerally Hall & Co. v Steiner & Mondore, 147 AD2d 225, 227 [1989]).
In light of our determination in appeal No. 1 that the note of issue and certificate ofreadiness was properly vacated, there is no bar to the continuance of discovery (see generally Furrukh v ForestHills Hosp., 107 AD3d 668, 669 [2013]), or to the filing of "dispositivemotions" by defendants (see generally CPLR 3212 [a]). We therefore dismiss asmoot plaintiff's appeal from the order in appeal No. 2 (see generally Meabon v Town ofPoland, 108 AD3d 1183, 1185 [2013]). Present—Smith, J.P., Peradotto,Lindley, Valentino and Whalen, JJ.