Friday, November 13, 2015

Additional discovery after filing a note of issue.

Practice point:  The Appellate Division reversed, and denied that branch of the defendant's renewed motion which was to compel the plaintiff to submit to an independent medical examination.

The Appellate Division held that the defendant waived her right to conduct an independent medical examination of the plaintiff by failing to designate a physician to conduct such examination within the time period set forth in the relevant compliance conference order, and by her failure to move to vacate the note of issue within 20 days after service of the note of issue and certificate of readiness, pursuant to 22 NYCRR 202.21[e].

Student note:  The Supreme Court may, in its discretion, permit additional discovery after the filing of a note of issue and certificate of readiness where the movant demonstrates that unusual or unanticipated circumstances developed subsequent to the filing, requiring additional pretrial proceedings to prevent substantial prejudice, pursuant to 22 NYCRR 202.21[d].

Case:  Gianacopoulos v. Corona, NY Slip Op 07948 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A motion for leave to reargue.