RODRIGUEZ v. PLLC (2024)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about February 2, 2024, which, to the extent appealed from, denied defendant Public Administrator's request for an independent medical examination (IME) of plaintiff, unanimously affirmed, without costs.  Order, same court and Justice, entered on or about April 18, 2024, which, to the extent appealed from and appealable, denied the Public Administrator's motion to renew its request for an IME of plaintiff, unanimously reversed, on the law and the facts, without costs, the motion to renew granted, and, upon renewal, the request for an IME of plaintiff granted.

The Public Administrator waived its right to an IME of plaintiff by failing to comply with the court's order and designate an examining physician by July 2021.  However, plaintiffs’ February 5, 2024 disclosure that she had been examined by an expert and had received previously undisclosed counseling and dermatological care, which was made four days before she filed the note of issue, entitled the Public Administrator to an IME of plaintiff (see Orsos v. Hudson Tr. Corp., 95 A.D.3d 526, 526, 944 N.Y.S.2d 514 [1st Dept. 2012]).  Plaintiffs did not comply with Uniform Rules for Trial Courts (22 NYCRR) § 202.17(g) (see Drame v. Ambulette P.R.N., Inc., 137 A.D.3d 631, 26 N.Y.S.3d 853 [1st Dept. 2016]), in that they did not identify a time and place where further examination may be had, and the Public Administrator timely moved to vacate the note of issue and request the IME.