Marriott v. Cappello

• Citation: 56 N.Y.S.3d 691,151 A.D.3d 1580
• Parties: Christopher R. MARRIOTT, Plaintiff–Appellant, v. Virginia A. CAPPELLO, Defendant–Respondent.
• Decision Date: 09 June 2017
• Court: New York Supreme Court Appellate Division

151 A.D.3d 1580
56 N.Y.S.3d 691

Christopher R. MARRIOTT, Plaintiff–Appellant,
v.
Virginia A. CAPPELLO, Defendant–Respondent.

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

June 9, 2017.

56 N.Y.S.3d 692

Garvey & Garvey, Buffalo (Matthew J. Garvey of Counsel), for Plaintiff–Appellant.

Mura & Storm, Pllc, Buffalo (Kris E. Lawrence of Counsel), for Defendant–Respondent.

PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND SCUDDER, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking to recover damages for injuries he allegedly sustained when his vehicle collided with a vehicle owned and operated by defendant.

Plaintiff subsequently moved to preclude the testimony and report of defendant's expert, who conducted a medical examination of plaintiff. Plaintiff contends that Supreme Court should have granted the motion inasmuch as his right to have a representative present at the examination was violated. We agree that plaintiff's rights were violated, and we therefore modify the order accordingly.

On September 24, 2015, defendant served plaintiff with a notice of physical examination, scheduled for November 16, 2015, with a neurologist, who is also a licensed psychologist (hereafter, doctor). Plaintiff arrived at the scheduled examination with his attorney and a registered nurse. After the initial interview process started with the doctor's staff, plaintiff's counsel left the office. The nurse averred in her reply affidavit that plaintiff's counsel informed plaintiff, in front of office staff, that the nurse would be attending the entire evaluation. The nurse further averred in her reply affidavit, "The staff member who did the initial evaluation stated that would be the case so long as I stayed in the background and did not interfere with the examination." The parties presented various accounts of what the doctor and the nurse said and did thereafter, but it is undisputed that the nurse hired by plaintiff to observe the examination was not present when the 2 ½–hour examination was conducted.

The doctor averred in his affidavit, "I am well aware that the law in the State of New York states that a party undergoing an independent medical examination may have a representative present during testing so long as that person does not interfere overtly with the conduct of the examination. This legal right conflicts with the ethical standards of my practice, but I am aware it exists." The doctor further

56 N.Y.S.3d 693

averred that, in accordance with the ethical standards of his practice, he informed plaintiff and the nurse that, typically, he would conduct plaintiff's neuropsychological testing without the nurse in the room. The doctor averred that the nurse immediately "acquiesced" and that the doctor proceeded to conduct plaintiff's testing without a word of protest from either the nurse or plaintiff.

The nurse has a significantly different recollection. She averred instead that, as plaintiff was being escorted to the testing room, the doctor "stepped in front" of the nurse and said that the nurse was not allowed in the room during his testing. The nurse averred that she informed the doctor that she was there to attend the entire examination but was told by the doctor that she could not attend his testing. Although the nurse did not see the doctor again that day, she claims that she repeatedly asked his staff to be allowed to attend the examination and was told each time that she was not permitted to observe the examination. The portion of the examination from which the nurse was excluded spanned 2 ½ hours, not including a lunch break. The nurse averred that she made it clear to the doctor that she was there to observe the entire examination and that she in no way "acquiesced" to her exclusion therefrom.

As the dissent recognizes, a plaintiff "is ‘entitled to be examined in the presence of [his or] her attorney or other ... representative ... so long as [that person does] not interfere with the conduct of the examinations' ..., ‘unless [the] defendant makes a positive showing of necessity for the exclusion of’ such an individual" (A.W. v. County of Oneida, 34 A.D.3d 1236, 1237–1238, 827 N.Y.S.2d 790 ; see Flores v. Vescera, 105 A.D.3d 1340, 1340–1341, 963 N.Y.S.2d 884 ; Jessica H. v. Spagnolo, 41 A.D.3d 1261, 1262–1263, 839 N.Y.S.2d 638 ). Nonetheless, as the dissent notes, there is no requirement that a representative of plaintiff be present during the examination, and plaintiff may waive the right to have a representative present. Two examples of waiver are set forth by the dissent, the first of which involves the plaintiff's merely appearing for the examination without a representative. Clearly, that is not the factual situation here. Second, a waiver can occur by the examined party's unreasonable delay in making a motion to enforce the right (see Pendergast v. Consolidated Rail Corp., 244 A.D.2d 868, 869, 665 N.Y.S.2d 132 ). Here, it was less than two months...