SANLY v. NOWAK (2008)

Plaintiffs, as limited by their brief, appeal from an order denying their motion for a protective order with respect to defendants' demand for a second physical examination of Eileen Sanly (plaintiff) and that part of their motion for a protective order with respect to defendants' demand for a second deposition of plaintiff.   Both of defendants' demands for such discovery were made more than one year after the note of issue was filed.   We reverse the order insofar as appealed from.  “It is well established that, ‘absent special, unusual or extraordinary circumstances spelled out factually, the motion court lacks discretion to permit further discovery after the note of issue and statement of readiness have been filed’ ” (Marks v. Morrison, 275 A.D.2d 1027, 714 N.Y.S.2d 167;  see 22 NYCRR 202.21[d];  Di Matteo v. Grey, 280 A.D.2d 929, 930, 721 N.Y.S.2d 182), and defendants failed to establish that any such circumstances developed after the filing of the note of issue and statement of readiness (see Lopez v. Barrett T.B. Inc., 38 A.D.3d 1308, 1310, 833 N.Y.S.2d 340;  Fuzak v. Donohue, 23 A.D.3d 1022, 803 N.Y.S.2d 454;  Di Matteo, 280 A.D.2d at 930, 721 N.Y.S.2d 182).

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law with costs and the motion for a protective order with respect to a second physical examination of plaintiff Eileen Sanly and that part of the motion for a protective order with respect to a second deposition of that plaintiff are granted.

MEMORANDUM: