MANUEL BERMEJO, res, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION def, IBEX CONSTRUCTION, LLC APPELLANTS (AND ANOTHER ACTION AND THIRD-PARTY ACTIONS). (INDEX NO. 23985/09) APPEALS by the defendant Ibex Construction, LLC, in an action, inter alia, to recover damages for personal injuries, (1) from an order of the Supreme Court (Duane A. Hart, J.), dated July 8, 2013, and entered in Queens County, (2) from an amended order of the same court, also dated July 8, 2013, and (3), as limited by its brief, from so much of a second amended order of the same court dated July 26, 2013, as denied those branches of its motion which were for leave to have the plaintiff re-examined by an orthopedist of its own choosing and for an award of costs against plaintiff’s counsel pursuant to 22 NYCRR 130-1.1, and SEPARATE APPEAL by the defendant Amsterdam & 76th Associates, LLC, as limited by its brief, from so much of the second amended order as denied those branches of its motion which were for leave to have the plaintiff re-examined by an orthopedist of its own choosing, to disqualify plaintiff’s counsel based on a violation of rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0), and for an award of costs against plaintiff’s counsel pursuant to 22 NYCRR 130-1.1.
ROMAN, J.Prior to the trial on the issue of damages in this personal injury action, the plaintiff’s trial attorney surreptitiously videotaped an independent medical examination (hereinafter IME) conducted by an orthopedist retained by the defendant Ibex Construction, LLC (hereinafter Ibex). The attorney failed to disclose the existence of that recording to defense counsel, and then revealed its existence for the first time at trial, during redirect examination of his own paralegal, who took the witness stand to testify as to the brevity of the orthopedist’s examination of the plaintiff. This resulted in the declaration of a mistrial, and the orthopedist subsequently declared that he was not willing to testify at the new trial. Since Ibex and the defendant Amsterdam & 76th Associates, LLC (hereinafter Amsterdam, and together the appellants), would be required to serve a subpoena upon the orthopedist to secure his testimony at the new trial, they separately moved, inter alia, for leave to have the plaintiff re-examined by an orthopedist of their own choosing, and for an award of costs against plaintiff’s counsel pursuant to 22 NYCRR 130-1.1. Justice Duane A. Hart of the Supreme Court, Queens County, denied those branches of the appellants’ separate motions.
