CLARKE v. CLARKE

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Dimetri CLARKE, et al., respondents, v. Kingsley CLARKE, et al., appellants, et al., defendant.

Decided: January 15, 2014

WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ. Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for appellants. Souren A. Israelyan, New York, N.Y., for respondent Dimetri Clarke. Richard A. Gash, New York, N.Y., for respondent Raphael Williams.

In a consolidated action to recover damages for personal injuries, the defendants Kingsley Clarke and CNH Enterprise, Inc., appeal from an order of the Supreme Court, Kings County (F.Rivera, J .), dated October 5, 2012, which granted their motion to strike the plaintiffs' note of issue only to the extent of directing the plaintiffs to appear for depositions.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by adding thereto a provision directing that the defendants Kingsley Clarke and CNH Enterprise, Inc., promptly conduct independent medical examinations of the plaintiffs; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for the purpose of scheduling the independent medical examinations and determining their scope.

The Supreme Court has broad discretion in supervising disclosure and in resolving discovery disputes (see Conte v. County of Nassau, 87 AD3d 558, 559; Silberstein v. Maimonides Med. Ctr., 77 AD3d 910; Rinaldi v. Evenflo Co., Inc., 62 AD3d 856). However, the Appellate Division may substitute its own discretion for that of the trial court in such matters, even in the absence of an abuse of discretion (see Colantonio v. Mercy Med. Ctr., 102 AD3d 649, 650; Arpino v. F.J.F. & Sons Elec. Co. Inc., 102 AD3d 201, 209).

In the present case, given the appellants' persistent failure to cooperate with the plaintiffs' repeated requests to schedule the examinations of the plaintiffs, the Supreme Court providently exercised its discretion in granting the appellants' motion to strike the note of issue only to the extent of directing that the depositions of the plaintiffs be conducted expeditiously. However, under the circumstances of this case, the court also should have directed the prompt independent medical examinations of the plaintiffs, and we remit the matter for the expeditious scheduling of those examinations. We discern no basis for disturbing the Supreme Court's determination that the appellants, by their conduct, are deemed to have waived all other outstanding discovery in this action (see generally Hadden v. Consolidated Edison Co. of N.Y., 45 N.Y.2d 466, 469).

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