Romero v. City of New York

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Garson, J.), dated September 8, 1999, which granted the defendants’ motion to conduct an additional physical examination of the plaintiff and denied her cross motion for the imposition of a sanction pursuant to 22 NYCRR 130-1.1 (a). Ordered that the order is modified by deleting the provision thereof granting the defendants’ motion for an additional physical examination of the plaintiff, and substituting therefor a provision denying the motion; as so modified, the order is affirmed, without costs or disbursements. On April 12, 1999, this Court reversed the judgment of the Supreme Court, Kings County, in favor of the plaintiff and against the defendants on the issue of damages based upon the Supreme Court’s refusal to grant a reasonable adjournment of the damages trial so that the defendants’ examining physician, Dr. Richard E. Stern, could testify upon his return from Switzerland a few days later (see, Romero v City of New York, 260 AD2d 461). The damages trial was rescheduled for late August or early September 1999. On August 25, 1999, the defendants’ attorney appeared in court and requested that the plaintiff be directed to appear for an additional examination by a new physician because Dr. Stern was unavailable to testify. In an [600] order to show cause submitted by the defendants, counsel stated that Dr. Stern was available but that, because he was now on a teaching sabbatical in Switzerland, the defendants would have to pay an exorbitant sum to have him appear. The plaintiffs attorneys opposed the application, and cross-moved for the imposition of a sanction, asserting that they had contacted Dr. Stern’s office and were informed that he was available to testify on two weeks’ notice or within a few days if his schedule was open. Under these circumstances, the Supreme Court erred in allowing the defendants to conduct a further physical examination of the plaintiff by a new physician on the eve of trial. Contrary to the defendants’ contentions and the dissent’s conclusion, there was no demonstration of unusual or unanticipated circumstances to warrant discovery after the note of issue had been filed (see, 22 NYCRR 202.21 [d]; Audiovox Corp. v Benyamini, 265 AD2d 135). There is no evidence in the record as to when the defendants’ attorneys attempted to arrange for Dr. Stern to appear for the retrial on the issue of damages. Indeed, the record demonstrates that Dr. Stern needed, at most, two weeks’ notice and could have been available to testify within a few days. In either case, the proper resolution would have been to adjourn the trial until Dr. Stern could appear. As for the allegedly “outrageous” fees charged by Dr. Stern for his testimony, there was no evidence in the record that Dr. Stern’s fee schedule had changed from the time the defendants had initially engaged him, and an allegation of unspecified additional travel expenses alone was not sufficient to warrant granting the defendants’ application. Therefore, there was no basis to state that the defendants were surprised at the expense of securing Dr. Stern for trial. Any prejudice resulting from the allegedly “outrageous” fees charged by Dr. Stern was a direct result of the defendants’ own failure to establish a reasonable fee initially, and to timely ascertain Dr. Stern’s availability. The Supreme Court, however, properly denied the plaintiffs cross motion for the imposition of sanctions. O’Brien, J. P., Goldstein and Feuerstein, JJ., concur.