New York State Court of Claims

New York State Court of Claims

COLON v. NEW YORK STATE THRUWAY AUTHORITY, #2005-013-021, Claim No. 103357, Motion No. M-70043


Defendant's motion for an order amending the scheduling order to permit the physical examination of Claimants is granted to the extent noted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 11, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


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 Claimants:

Order to Show Cause, Affirmation and Exhibit Annexed

Opposing Affidavit

Opposing Affirmation

Filed Papers: Decision and Order herein in Motion No. M-64889, dated June 14, 2002

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 Kerr, 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.[1] 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,[2] 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 (201 AD2d 936, supra), requiring a demonstration of "special, unusual and extraordinary circumstances" to be controlling here.[3]

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 cover.

The motion is granted to the extent noted.

May 11, 2005
Rochester, New York

Judge of the Court of Claims

  1. [1]See Colon v State of New York and New York State Thruway Authority (Ct Cl, UID #2002-013-026 (Claim No. 103357 - Motion No. M-64889) June 14, 2002. (
    This and other decisions and selected orders of the New York State Court of Claims are available on the Internet at
  2. [2]Filed on March 11, 2002 and March 18, 2002.
  3. [3]The history and lower court decisions in Kerr are not available to me, but I note that this case has not been cited in any published trial or appellate court decision since it was filed more than 11 years ago on February 4, 1994.