SILVERBERG v. GUZMAN

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

Alice SILVERBERG, respondent, v. Anamaria GUZMAN, etc., et al., appellants.

Decided: April 28, 2009

REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH COVELLO, and RANDALL T. ENG, JJ. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner and Judy C. Selmeci of counsel), for appellants. Beck & Strauss, PLLC, Uniondale, N.Y. (Leland Stuart Beck of counsel), for respondent.

In an action to recover damages for medical malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rosenberg, J.), dated January 6, 2009, as denied that branch of their motion which was to compel the plaintiff to submit to a neuropsychological examination.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court did not improvidently exercise its discretion in denying that branch of the defendants' motion which was to compel the plaintiff to submit to a neuropsychological examination, made more than six months after the note of issue had been filed.   The record supports the conclusion that the defendants were aware from the outset of the litigation that the mental state of the 80-year-old plaintiff was at issue, yet they did not request a neuropsychological examination until the instant motion.   Moreover, on their motion, they failed to make any showing that “unusual or unanticipated circumstances” developed subsequent to the filing of the note of issue (22 NYCRR 202.21[d];  see 22 NYCRR 202.21[e];  Marks v. Morrison, 275 A.D.2d 1027, 714 N.Y.S.2d 167;  Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 138, 707 N.Y.S.2d 137).

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