Pendergast v. Consolidated Rail Corp.
Decision Date | 19 November 1997 |
Citation | 244 A.D.2d 868,665 N.Y.S.2d 132 |
Parties | , 1997 N.Y. Slip Op. 9944 Thomas P. PENDERGAST, Respondent, v. CONSOLIDATED RAIL CORPORATION, a/k/a Conrail, Appellant. |
Court | New York Supreme Court — Appellate Division |
Hodgson, Russ, Andrews, Woods &Goodyear by Gregg Maxwell,Buffalo, for Defendant-Appellant.
Paul William Beltz, P.C. by Steve Foley, Buffalo, for Plaintiffs-Respondents.
Before PINE, J.P., and LAWTON, HAYES, CALLAHAN and BOEHM, JJ.
Supreme Court properly denied that portion of defendant's motion seeking to compel a physical examination of plaintiff and properly granted that portion of plaintiff's motion seeking a protective order with respect to the physical examination of plaintiff. Plaintiff commenced this personal injury action in 1992. In December 1993, plaintiff's counsel served a notice fixing the time and place for a physical examination of plaintiff. Thereafter, at defendant's request, plaintiff submitted to a physical examination by a neurologist. He appeared for a second physical examination on February 9, 1994, but the physician selected by defendant aborted the examination, objecting to the presence of a nurse representative of plaintiff's counsel. Defendant did not move to compel further examinations until July 1996, following the filing of the note of issue in June 1996.
The right to the presence of a legal representative at a physical examination is well established; (6 Weinstein-Korn-Miller, N.Y. Civ. Prac. p 3121.07, at 31-566). A timely request for re-examination, under appropriate circumstances, would have been permissible (see, Jakubowski v. Lengen, 86 A.D.2d 398, 450 N.Y.S.2d 612). However, defendant waited 2 1/2 years after the aborted examination to move to compel further examination, and did not bring that motion until after the note of issue had been filed. Under the circumstances of this case, we conclude that the court did not err with respect to the physical examination of plaintiff.
The court erred, however, in denying that portion of defendant's motion seeking a psychiatric examination of plaintiff. Defense counsel did not have notice of plaintiff's alleged...
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Marriott v. Cappello
...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 from the November 16, 2015 examination until the January 5, 2016 motion to prec......
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Cunningham v. Anderson
...cross motion seeking relief, plaintiff waived his rights and was not entitled to preclusion ( see Pendergast v. Consolidated Rail Corp., 244 A.D.2d 868, 869, 665 N.Y.S.2d 132 [1997] ). Addressing the judgment, plaintiff argues that once the jury found that defendant was negligent, it was re......