ACCIDENT PLAINTIFF SERVES NEW MEDICAL REPORT WHILE CASE ON TRIAL CALENDAR; DEFENSE ENTITLED TO NEW MEDICAL EXAMINATION

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Katharine Stock v. Nichol Morizzo, doing business as Village Hair Studio

Date: Feb. 7, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens;Queens accident attorney)

Comment: In a lawsuit, either party, usually the plaintiff, can serve and file a "note of issue" to certify that the case is ready for trial. This places the case on the "trial calendar." The trial calendar is just a list. A case starts at the bottom and waits its turn. It moves up the list as the cases ahead of it go to trial or are settled or otherwise resolved. When your case gets to the top of the trial calendar, it's your turn for trial. This process can take a year or more, depending on the backlog in your court.

Placing a case on the trial calendar means that all pre-trial proceedings, including discovery, are completed. So a case waits passively while on the trial calendar, with neither party requesting information from the other. However, if plaintiff raises something new or unanticipated comes up, the defense may request further discovery. That's what happened in this case.

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In an action to recover damages for personal injuries, etc., the defendant Mr. Beauty Equipment, 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 to submit 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 plaintiff Katharine Stock to submit to an independent neuropsychiatric examination is granted.

The Supreme Court, in its discretion, may grant permission to conduct additional discovery after the 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 that require additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d]; see Lopez v. Retail Prop. Trust, 84 A.D.3d 891, 921 N.Y.S.2d 906; Wigand v. Modlin, 82 A.D.3d 1213, 919 N.Y.S.2d 868; Owen v. Lester, 79 A.D.3d 992, 915 N.Y.S.2d 277; Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 140, 707 N.Y.S.2d 137). Here, more than two years after the filing of the note of issue and certificate of readiness, the plaintiffs served a neuropsychiatric report, which alleged that the injured plaintiff suffered from new or additional psychiatric injuries and that her psychological injuries had dramatically changed. Under these circumstances, the appellant demonstrated that "unusual or unanticipated circumstances" developed subsequent to the filing of the note of issue and certificate of readiness, justifying a neuropsychiatric examination of the injured plaintiff (see Sorrentino v. Fedorczuk, 85 A.D.3d 759, 760, 925 N.Y.S.2d 150; Singh v. 244 W. 39th St. Realty, Inc., 65 A.D.3d 1325, 1326, 886 N.Y.S.2d 226; Karakostas v. Avis Rent A Car Sys., 306 A.D.2d 381, 382, 761 N.Y.S.2d 283; Huggins v. New York City Tr. Auth., 225 A.D.2d 732, 733, 640 N.Y.S.2d 199). Accordingly, the Supreme Court should have granted the appellant's renewed motion to compel the injured plaintiff to submit to an independent neuropsychiatric examination.

We have not considered the appellant's contention that the injured plaintiff should also be compelled to submit to an additional deposition, which was improperly raised for the first time in reply papers, and not considered by the Supreme Court (see Encarnacion v. Smith, 70 A.D.3d 628, 629, 893 N.Y.S.2d 625; Goldstein v. Haberman, 183 A.D.2d 807, 584 N.Y.S.2d 121).

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