PARATO v. YAGUDAEU (2007)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about August 10, 2006, which denied defendants' motion to strike the note of issue and compel plaintiff to appear for an independent medical examination (IME), unanimously affirmed, without costs.

The record evidence establishes that following the filing of the note of issue and certificate of readiness in this action where plaintiff was allegedly injured in an automobile accident, defendants timely moved to strike the note of issue on the basis that plaintiff had inaccurately represented that discovery was completed.   The court resolved the matter by permitting further discovery, but no IME was conducted and defendants have now moved for the second time to strike the note of issue in order to conduct two IMEs on the basis that the parties mistakenly believed that an IME had already been conducted.

The court providently exercised its discretion by denying defendants' motion, which was brought more than one year after the note of issue was filed and ten months after the court permitted additional discovery in response to defendants' first motion.   Defendants waived their right to conduct the IME of plaintiff by failing to obtain an examination despite ample opportunities to do so, and they did not allege any unusual or unanticipated circumstances that would warrant granting the relief requested (see Mateo v. City of New York, 282 A.D.2d 313, 723 N.Y.S.2d 362 [2001];  Mayo v. Lincoln Triangle Assoc., 248 A.D.2d 362, 669 N.Y.S.2d 635 [1998] ).