Nancy L. Jeffery, Plaintiff, v. 301 FIRSTSERVE RESIDENTIAL NEW YORK INC (2026)

In this personal-injury action, defendants move to vacate plaintiff's note of issue and to compel further discovery. (See NYSCEF No. 37.) The request to vacate the note of issue is denied; but plaintiff must appear for a post-note supplemental deposition and physical examination.

Under the court's compliance-conference order in this action, plaintiff's deadline to file her note of issue was January 12, 2026. (See NYSCEF No. 20 at 2.) On the afternoon of January 6, plaintiff served a supplemental bill of particulars, reflecting neurological injuries that were not specifically identified in the initial bill of particulars. (See NYSCEF No. 25 at 2-3.) Plaintiff also served an authorization for the release of medical records by a previously undisclosed treating neurologist, Dr. Daniel MacGowan. (See id. at 8). On the morning of January 7, plaintiff filed her note of issue. (NYSCEF No. 27.)

That night, defendants noticed further damages depositions and medical examinations in light of the neurological injuries identified in the supplemental bill of particulars (and in light of Dr. MacGowan's treatment of plaintiff). (See NYSCEF Nos. 29, 30.) Defendants also served a good-faith letter demanding that plaintiff withdraw her note of issue. (See NYSCEF No. 33.) On January 9, plaintiff served a responsive letter, declining to appear for further depositions and examinations, and declining to withdraw her note of issue. (See NYSCEF No. 33.) Defendants then emailed this court to request a discovery conference; following an exchange of letters from the parties, the court concluded that the dispute was best resolved on formal motion papers, rather than through a conference. (See NYSCEF Nos. 42-46.) This court gave defendants until January 30, 2026, to bring their motion, and defendants have now timely moved.

DISCUSSION

The question presented by this motion is whether, in light of plaintiff's supplemental bill of particulars and disclosure of an additional treating physician, all necessary discovery has been completed such that the case is trial-ready. This court concludes that necessary discovery remains outstanding.

In contending that discovery has been completed, plaintiff argues that her January 6 BP filing qualifies as a supplemental bill of particulars, because the injuries identified for the first time in that filing are the natural outgrowth of the injuries identified in the initial BP. Defendants respond that, according to their expert physicians, the injuries in the supplemental BP are not causally related to plaintiff's initial injuries. As a result, defendants say, the putative supplemental BP is better understood as an amended BP, for which further discovery is required.

This court need not (and does not) definitively resolve here whether defendants have sufficiently shown that no causal relationship exists between plaintiff's broken arm (and her related initial symptoms) and the neurological injuries identified in the January 6 filing. At a minimum, the injuries listed in plaintiff's initial BP do not sufficiently foreshadow the additional injuries set out in the supplemental BP to have put defendants on notice for discovery purposes that plaintiff would be (or could be expected to be) claiming those additional injuries. Nor does the supplemental BP provide simply a refined diagnosis or explanation for the injuries in the initial BP, without altering the substance of what is being claimed.

Plaintiff also argues that defendants had sufficient notice of the injuries discussed in her supplemental BP. Plaintiff points out that she reported symptoms related to those injuries, both in visits with her treating orthopedist in the summer and fall of 2025, and at her medical examination by defendants' expert orthopedist in November 2025; and that her orthopedist diagnosed a potential neurological condition in her injured arm. Therefore, plaintiff contends, defendants' choice in late 2025 not to seek a further damages deposition or neurological examination waived defendants' right to obtain that discovery. This argument is unpersuasive.

For one, plaintiff's reported symptoms, and her orthopedist's neurological diagnosis, were not sufficient, without more, to put defendants on notice that plaintiff intended to claim that condition as an injury resulting from her fall for which she is entitled to damages. Moreover, even if defendants were on notice of plaintiff's neurological symptoms by November 2025, defendants were not on notice that plaintiff was being treated by a neurological specialist until January 6, 2026—less than 24 hours before plaintiff filed her note of issue.¹ And defendants did not learn until January 9, 2026, days after the note of issue that plaintiff had undergone a related nerve-conduction study of her injured arm.

In these circumstances, the court agrees with defendants that they are entitled to a supplemental damages deposition—limited to the additional injuries claimed in the supplemental BP. Defendants are also entitled to require plaintiff to appear for a medical examination by a neurologist. This court is not persuaded, however, by defendants' position that they are entitled also to have their orthopedic expert and pain-management expert conduct further examinations of plaintiff based on claimed neurological injuries. That is particularly true given that plaintiff already reported some of the symptoms of those claimed injuries during her examination by defendant's orthopedic expert.

The court also declines to vacate plaintiff's note of issue. The court concludes instead that the better course is for this action to remain on the trial calendar while the parties conduct the focused post-note discovery set forth above. The parties are directed to meet and confer—cooperatively and in good faith—on the most efficient and mutually convenient means of completing this post-note discovery.

Accordingly, it is

ORDERED that the branches of defendants' motion seeking to vacate plaintiff's January 7, 2026, note of issue, or alternatively to preclude testimony, are denied; and it is further

ORDERED that the branch of defendants' motion seeking to compel further discovery is granted to the following extent:

(i) plaintiff shall appear, within 30 days of entry of this order, for a supplemental damages deposition, limited to the subject of the additional injuries claimed in plaintiff's January 6, 2026, supplemental bill of particulars; and

(ii) plaintiff shall appear, within 45 days of the completion of her supplemental damages deposition, for a physical examination by a neurologist to be designated by defendant;

and the branch of the motion seeking to compel discovery is otherwise denied.

DATE 3/4/2026

FOOTNOTES

1.   Plaintiff asserts that defendants also waived their right to contest the completeness of discovery by having consented to the filing of the note of issue. (See NYSCEF No. 52 at ¶ 5.) But that consent was given in December 2025—before plaintiff served a supplemental BP and before plaintiff disclosed to defendants that she was being treated by a neurologist.

Gerald Lebovits, J.