Bundhoo v. Wendy'S, 2015-03075, 2015-08547, Index No. 11124/12.

• Decision Date: 26 July 2017
• Docket Number: 2015-03075, 2015-08547, Index No. 11124/12.
• Citation: 152 A.D.3d 734,60 N.Y.S.3d 58
• Parties: Balroop BUNDHOO, as personal needs and property management guardian of Seelochanie Bundhoo, respondent, v. WENDY'S, et al., appellants.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 734

60 N.Y.S.3d 58

Balroop BUNDHOO, as personal needs and property management guardian of Seelochanie Bundhoo, respondent,

v.WENDY'S, et al., appellants.

2015-03075, 2015-08547, Index No. 11124/12.

Supreme Court, Appellate Division, Second Department, New York.

July 26, 2017.

Bartlett, McDonough & Monaghan, LLP, White Plains, NY (David C. Zegarelli of counsel; Barry, McTiernan & Moore LLC [Laurel A. Wedinger of counsel], former counsel on the brief), for appellants.

Hallock & Malerba, P.C., Deer Park, NY (Larry Hallock of counsel), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Queens County (Velasquez, J.), entered January 23, 2015, as denied those branches of their motion which were to vacate the note of issue and, in effect, to compel the plaintiff to provide certain discovery and to compel an independent medical examination of Seelochanie Bundhoo, and (2) so much of an order of the same court entered July 7, 2015, as denied that branch of their motion which was for leave to reargue that branch of their prior motion which was to vacate the note of issue, and, in effect, upon granting that branch of their motion which was for leave to reargue those branches of their prior motion which were, in effect, to compel the plaintiff to provide certain discovery and to compel an independent medical examination of Seelochanie Bundhoo, adhered to its original determination denying those branches of their prior motion.

ORDERED that the appeal from so much of the order entered January 23, 2015, as denied those branches of the defendants' motion which were, in effect, to compel the plaintiff to provide certain discovery and to compel an independent medical examination of Seelochanie Bundhoo is dismissed, as that portion of the order was superseded by so much of the order entered July 7, 2015, as was, in effect, made upon reargument; and it is further,

ORDERED that the appeal from so much of the order entered July 7, 2015, as denied that branch of the defendants' motion which was for leave to reargue that branch of their prior motion which was to vacate the note of issue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order entered January 23, 2015, is affirmed insofar as reviewed; and it is further,

ORDERED that the order entered July 7, 2015, is modified, on the facts and in the exercise of discretion, by deleting the provision thereof, in effect, upon reargument, adhering to so much of the determination in the order entered January 23, 2015, as denied that branch of the defendants' motion which was, in effect, to compel an independent medical examination of Seelochanie Bundhoo, and substituting therefor provisions, upon reargument, vacating that portion of the order entered January 23, 2015, and, thereupon, granting that branch of the defendants' motion; as so modified, the order entered July 7, 2015, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

In 2012, Seelochanie Bundhoo (hereinafter Mrs. Bundhoo) commenced this action to recover damages for injuries she contends she sustained in June 2010 when she slipped and fell in a parking lot owned by the defendant Wendy's and operated by the defendant Briad Wenco, LLC. Mrs. Bundhoo alleged that she was rendered incapacitated as a result of the incident, and subsequently, Balroop Bundhoo (hereinafter the plaintiff), who had been appointed by the Surrogate's Court, Queens County, as guardian of the person and property of Mrs. Bundhoo, was substituted as the plaintiff.

On October 17, 2013, the Supreme Court issued a preliminary conference order, on the parties' consent, which, among other things, set a date for Mrs. Bundhoo's deposition at a location to be determined and provided that an independent medical examination (hereinafter IME) of Mrs. Bundhoo was to be held within 45 days of the completion of that deposition. The preliminary conference order directed the plaintiff's attorney to either produce Mrs. Bundhoo for the deposition and the IME, or submit an affirmation stating that Mrs. Bundhoo would not testify at trial or submit an affidavit in opposition to any motion for summary judgment. Mrs. Bundhoo's deposition did not occur...