| Clarke v Clarke |
| 2014 NY Slip Op 00200 [113 AD3d 646] |
| January 15, 2014 |
| Appellate Division, Second Department |
| Dimetri Clarke et al., Respondents, v KingsleyClarke et al., Appellants, et al., Defendant. |
—[*1] Souren A. Israelyan, New York, N.Y., for respondent Dimetri Clarke. Richard A. Gash, New York, N.Y., for respondent Raphael Williams.
In a consolidated action to recover damages for personal injuries, the defendantsKingsley Clarke and CNH Enterprise, Inc., appeal from an order of the Supreme Court,Kings County (F. Rivera, J.), dated October 5, 2012, which granted their motion to strikethe plaintiffs' note of issue only to the extent of directing the plaintiffs to appear fordepositions.
Ordered that the order is modified, on the facts and in the exercise of discretion, byadding thereto a provision directing that the defendants Kingsley Clarke and CNHEnterprise, Inc., promptly conduct independent medical examinations of the plaintiffs; asso modified, the order is affirmed, without costs or disbursements, and the matter isremitted to the Supreme Court, Kings County, for the purpose of scheduling theindependent medical examinations and determining their scope.
The Supreme Court has broad discretion in supervising disclosure and in resolvingdiscovery disputes (see Conte vCounty of Nassau, 87 AD3d 558, 559 [2011]; Silberstein v Maimonides Med.Ctr., 77 AD3d 910 [2010]; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]).However, the Appellate Division may substitute its own discretion for that of the trialcourt in such matters, even in the absence of an abuse of discretion (see Colantonio v Mercy Med.Ctr., 102 AD3d 649, 650 [2013]; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 209[2012]).
In the present case, given the appellants' persistent failure to cooperate with theplaintiffs' repeated requests to schedule the examinations of the plaintiffs, the SupremeCourt providently exercised its discretion in granting the appellants' motion to strike thenote of issue only to the extent of directing that the depositions of the plaintiffs beconducted expeditiously. However, under the circumstances of this case, the court alsoshould have directed the prompt independent medical examinations of the plaintiffs, andwe remit the matter for the expeditious scheduling of those examinations. We discern nobasis for disturbing the Supreme Court's determination that the appellants, by theirconduct, are deemed to have waived all other outstanding discovery in this action(see generally Hadden v Consolidated Edison Co. of N.Y., 45 NY2d 466, 469[1978]). Mastro, J.P., Lott, Austin and Roman, JJ., concur.