Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), dated February 1, 2011, which denied their motion to vacate their notice of trial and for leave to conduct additional discovery.
Order (Donald A. Miles, J.), dated February 1, 2011, modified by directing plaintiff to appear for an independent medical examination within 20 days of service of a copy of this order with notice of entry; as modified, affirmed, without costs.
In this action for personal injuries sustained by plaintiff pedestrian as a result of a motor vehicle accident, defendants' expert orthopedic surgeon died following the filing of the notice of trial. As a result, defendants sought an additional medical examination of plaintiff by an orthopedist who would be available to testify at trial. The unanticipated death of defendants' orthopedist after examining plaintiff constituted an "unusual and unanticipated condition" which warranted a further physical examination of plaintiff "after [the] action ha[d] been placed on the trial calendar" (22 NYCRR 208.17[d]; see Schissler v Brookdale Hosp. Ctr., 289 AD2d 469, 470 ; Rosado v A & P Food Store, 26 Misc 3d 935, 940 ).
Under these circumstances, the equities are properly balanced by directing plaintiff to submit to the additional physical examination without vacating the notice of trial (see Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 168 AD2d 376 ; see generally Acevedo v New York City Tr. Auth., 294 AD2d 310 ).
Decision Date: July 06, 2011
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