On May 11, 2005, the following papers were read on motion by Defendant for an
order amending the scheduling order to permit the physical examination of
Order to Show Cause, Affirmation and Exhibit Annexed
Filed Papers: Decision and Order herein in Motion No. M-64889, dated June 14,
Upon the foregoing papers this motion is granted to the extent noted.
By order to show cause, the Defendant seeks an amendment to the scheduling
order dated November 18, 2004 to permit it to conduct physical examinations of
the Claimants. That order, inter alia, permitted the Defendant to
conduct such physical examinations no later than April 1, 2005, and set a day
certain trial on damages for November 14, 2005.
The show cause order was presented to the Court and signed on April 19, 2005.
Defendant affirms that, although it had properly calendared the trial date and
the CPLR 3101(d) disclosure dates, through inadvertence it neglected to calendar
the date by which the physical examinations were to be completed. Defendant
offers no excuse other than its oversight, but urges that the Claimants would
not be prejudiced and requests an amended date of September 1, 2005 for the
completion of said physical examinations.
Claimants oppose the relief. Claimant Colon, joined by Claimant Dayton,
observe that the note of issue has already been filed herein and that the
requirements of Kerr v Dunham
(201 AD2d 936), to wit, a demonstration of
"special, unusual and extraordinary circumstances" have not been satisfied. In
, however, there was a five-month period after the filing of the note
of issue, and here, Claimants' arguments to the contrary, these claims were
bifurcated long before the trial on liability. Indeed, I have previously ruled
upon the issue of physical examinations relative to the question of serious
personal injury (Insurance Law §5102[d]) and denied the Defendant's motion
to strike the note of issue.
I noted then
that "[s]cheduling orders were issued on June 20, 2001, bifurcating the trial of
both actions and directing the parties to complete all discovery and to file
notes of issue with respect to liability on or before December 3, 2001" and that
"Defendant will conduct a physical examination of Claimant within 90 days after
the filing of the trial decision determining liability, if any." There were
later amendments to the filing deadlines for the notes of issue, but the salient
point is that it has been clear that the notes of issue only pertained to
liability, and the question of physical examinations was to be measured by a
90-day period after a finding of liability. Thus, Claimants' reference back to
the notes of issue here,
as if the Defendant
has lapsed in seeking these physical examinations since their filing in March
2002, is hardly persuasive.
Similarly, unpersuasive is Claimants' argument that they would be prejudiced if
they had to wait until the end of August for the physical examinations to be
conducted and then "the reports and Curriculum Vitaes [sic] are not supplied...
until some undetermined time thereafter." The current scheduling order did
contain a determinative period of time for the Defendant to provide Claimants
with all CPLR 3101(d) disclosures no less than 30 days prior to trial, to wit,
by October 14, 2005, with Claimants' similar disclosures being provided by
September 15, 2005. Thus, given those date requirements, unaffected by the
relief requested today, I can discern no prejudice to the Claimants should the
relief be granted.
Given the bifurcation of the trials here and the previous motion practice
relative to physical examinations, I do not find Kerr v Dunham
), requiring a demonstration of "special, unusual and
extraordinary circumstances" to be controlling
On the other hand, Defendant did, however inadvertently, allow the April 1,
2005 deadline to pass without taking any action and now seeks a five-month
extension of time to conduct these examinations. I find that to be an
unnecessarily extended period. In the exercise of my discretion, I will amend
the scheduling order herein to permit Defendant to conduct a physical
examination of the Claimants no later than July 14, 2005, which is still four
months prior to the date of the joint trial on damages, with the reports to be
delivered to Claimants no later than August 15, 2005. I have given no credence
to the Defendant's attempted characterization of the injuries, soft tissue or
otherwise, of any of the Claimants. That determination and all other aspects of
the injuries and damages sustained will abide the trial in November.
All other aspects of my scheduling order dated November 18, 2004 remain
unchanged. A separate order relating to the trial of this matter and the
scheduling of a trial preparation conference (TPC) will be issued under separate
The motion is granted to the extent noted.