This is an action for personal injuries arising out of a motor vehicle accident which occurred in the early morning hours on September 30, 2017, on Southwestern Avenue in the City of Glens Falls. Defendants move for an order, pursuant to Uniform Rule § 202.21 [e], vacating the note of issue and certificate of readiness for trial and striking the matter from the trial calendar, or, in the alternative, an order, pursuant to CPLR 3126 [3], striking plaintiff’s complaint, or, in the alternative, an order, pursuant to CPLR 3126 [2], precluding plaintiff from offering testimony at trial. Plaintiff opposes. In deciding the motion, the Court has reviewed and considered the following: the affirmation of James D. Taylor, Esq., dated December 21, 2020, with exhibits, in support of the motion, and the affirmation of Cassandra A. Kazukenus, Esq., dated December 29, 2020, with exhibits, in opposition to the motion. Oral argument was conducted virtually, via Microsoft Teams, on January 8, 2021. On or about February 4, 2020, defendants served an answer to the complaint, along with a demand for bill of particulars, demand for ad damnum, demand for discovery, notice of revocation of service by electronic means and notice to take deposition upon oral examination. On that same date, defendants also furnished responses to plaintiff’s notice to produce. On December 1, 2020, plaintiff filed a note of issue and certificate of readiness for trial. Defendants contend that the note of issue and certificate of readiness for trial should be vacated because plaintiff has failed to serve responses to defendants’ demand for a bill of particulars and demand for discovery and has not objected to the demands or moved for a protective order. In addition, defendant contends that plaintiff failed to appear for an independent medical examination. In opposition, plaintiff contends that defendants waived their right to conduct an independent medical examination and that no discovery was outstanding when plaintiff filed the note of issue. Plaintiff further asserts that there was no willful failure to comply with defendants’ discovery demands. In response to the motion, plaintiff furnished, among other items, plaintiff’s verified bill of particulars, response to defendants’ demand for discovery and demand for a verified bill of particulars, along with an email dated May 1, 2020, from plaintiff’s counsel to defendants’ counsel, transmitting these documents.1 Plaintiff also furnished an email response sent later that same day by defendants’ counsel, which states, “Thanks Robert/Cassandra. Going forward the correct email recipient on this one will be attorney James Taylor of our office,” and included Attorney Taylor’s email address. According to plaintiff’s counsel, the verified bill of particulars and responses to defendants’ demand for disclosure were sent by email on May 1, 2020, because, at that time, plaintiff’s counsel was working remotely due to the COVID-19 pandemic. A deposition of plaintiff was taken on July 16, 2020. On July 27, 2020, plaintiff served a notice of availability for physical examination (“notice of availability”), pursuant to 22 NYCRR 202.17, upon defendants’ counsel via regular mail.2 Critical to the present dispute, the notice of availability states “[u]pon your failure to submit to the undersigned the name of your examining physician within five (5) days from date of service hereof, you shall be deemed to waive your right to a physical examination.” It is undisputed that defendants’ counsel did not respond to the notice of availability within five days. A response to the notice of availability came in the form of a notice from non-party Exam Works, dated December 2, 2020, addressed to plaintiff’s counsel, indicating an independent examination of plaintiff had been scheduled for December 15, 2020, at 10:30 a.m. In response to this notice, plaintiff’s counsel sent correspondence to defendants’ counsel, dated December 8, 2020, setting forth plaintiff’s position that because defendants had failed to name an examining physician within five days of service of the notice of availability, defendants had waived their right to conduct a physical examination of plaintiff and plaintiff would not appear for the examination. According to plaintiff’s counsel, before the note of issue was filed, she received a telephone call from defendants’ counsel in which he indicated he had not been served with plaintiff’s discovery responses. However, thereafter, on November 24, 2020, defendants’ counsel sent an email to plaintiff’s counsel indicating he located plaintiff’s discovery responses and there was “no need to send them again.” Based on the record before the Court, it is evident that plaintiff furnished responses to defendants’ demand for a bill of particulars and demand for discovery. Although defendants’ counsel raised an issue about the method of service, based upon their service of a notice of revocation of service by electronic means, defendants’ counsel did not adhere to the notice and accepted service of plaintiff’s verified bill of particulars and responses to defendants’ demands for discovery by email on May 1, 2020, and confirmed again by email on November 24, 2020, plaintiff’s discovery responses had been received. Moreover, in light of the restrictions placed upon law firms due to the COVID-19 pandemic, and that plaintiff’s counsel, and apparently defendants’ counsel as well, were working remotely for at least part of 2020, the Court finds it reasonable for plaintiff’s counsel to have sent the verified bill of particulars and responses to discovery demands to defendants’ counsel via electronic means. Therefore, that branch of defendants’ motion which seeks, in the alternative, an order, pursuant to CPLR 3126 [3], striking plaintiff’s complaint, or, in the alternative, an order, pursuant to CPLR 3126 [2], precluding the plaintiff from offering testimony at trial is denied. The Court next turns to whether defendants have waived their right to an independent medical examination of plaintiff. “Section 672.1 of the rules of this court (22 NYCRR 672.1) requires that a notice of availability for a physical examination be responded to within five days of service. This court has held that, absent a reasonable excuse, noncompliance by a defendant with this rule will effectively waive that defendant’s right to a physical examination of the injured plaintiff (Delgado v. Fogle, 32 AD2d 85). Nevertheless, if the delay in responding to a notice of availability is not substantial, and if the hardship and prejudice to the defendant by being deprived of a physical examination far outweigh the prejudice to the plaintiff, then a physical examination will be permitted (Lilly v. McGowan, 59 AD2d 734).” (DeChirao v. Rendell, 95 AD2d 792 [2d Dept 1983]; cf., Deeley v. Leo’s Den, Inc., 126 AD2d 698 [2d Dept 1987] [in light of reasonable excuse offered for failing to timely move to vacate or modify notice for physical examination and lack of prejudice, physical examination of plaintiff to proceed].) Defendants offer two reasons for not timely responding to the notice of availability. First, defendants’ counsel contends that because plaintiff’s counsel sent the verified bill of particulars and responses to discovery demands to defendants’ counsel by email and did not abide by defendants’ notice of revocation of service by electronic means, counsel’s internal processes for handling the case were disrupted and the personnel within counsel’s office responsible for scheduling the IME were prevented from doing so. The Court finds this argument unavailing. First, as aforesaid, due to the impacts of the COVID-19 pandemic, it was understandable for plaintiff’s counsel to serve the verified bill of particulars and responses to discovery demands via electronic means. In addition, although defendants’ counsel never revoked the notice of revocation of service by electronic means, they nevertheless accepted service by electronic means. In addition, the notice of availability was served by ordinary mail on July 27, 2020, thereby eliminating any argument defendants may have that service of the notice of availability was invalid. Next, defendants contend that by reason of Executive Order No. 202.8, effective March 20, 2020 (“EO 202.8″), a temporary suspension or tolling of the time limit to respond to the notice of availability was imposed.3 Through other Executive Orders, the tolling was extended and pursuant to Executive Order No. 202.72 (“EO 202.72″) (Executive Order [A. Cuomo] No. 202.72 [9 NYCRR 8.202.72]) and ultimately ended on November 3, 2020. Plaintiff contends the tolling period ended on November 3, 2020, meaning, at best, defendants had until November 9, 2020, to respond to the notice of availability. Plaintiff further asserts that notwithstanding the provisions of EO 202.8, defendants continued preparation of the defense of the action throughout the duration of the tolling period, as evidenced by the examination before trial of plaintiff defendants conducted on July 16, 2020. The Court finds that upon a plain reading of EO 202.8 and EO 202.72, defendants were not required to respond to the notice of availability before November 4, 2020. In other words, EO 202.8 served as a reasonable excuse under these circumstances for not timely responding to the notice of availability within five days of service and also served as a legal basis for not responding before November 4, 2020. However, no response was made before November 9, 2020, and it was not until December 2, 2020 (twenty-three days later), that defendants furnished a response to the notice of availability through the notice of an independent examination sent by non-party Exam Works to plaintiff’s counsel. Defendants have not offered a justification or reasonable excuse for why they did not respond to the notice of availability between the period of November 9, 2020, and December 2, 2020. Under the circumstances, the Court does not find that this 23-day delay was substantial (compare Hamlin v. Mensch, 205 AD2d 452, 452 [1st Dept 1994] [lower court did not abuse its discretion in refusing to compel physical exam of plaintiff; defendant did not seek IME until approximately a year and half after service of notice of availability]). Therefore, the Court must consider whether “the hardship and prejudice to the defendant by being deprived of a physical examination far outweigh the prejudice to the plaintiff…” (DeChiaro v. Rendell). Defendants contend that requiring plaintiff to undergo an independent medical examination at this time will not result in any prejudice to plaintiff as the examination was scheduled for December 15, 2020, and then was re-scheduled for a date during the week of January 11, 2021, well in advance of any trial that will be held in the matter. Moreover, defendants claim that it would be highly prejudicial to defendants to not allow an independent medical examination of plaintiff, as defendants should be allowed to have their own medical expert examine plaintiff and give competent medical testimony at trial. In addition, defendants contend that permitting an independent medical examination might enable the parties to reach a settlement of the action and avoid trial. In contrast, plaintiff contends, that if permitted, a medical examination will likely result in competing medical evidence, which will create a stronger likelihood of the need for a trial. Plaintiff also points out that during the time period between July 27, 2020, and December 2, 2020, independent medical examinations were routinely being scheduled and conducted in other cases and defendants should not be rewarded in this action for their inordinate delay in noticing the independent medical examination, i.e. responding to the notice of availability. The Court finds that the hardship and prejudice to defendants of being deprived of an independent medical examination in this action far outweighs any perceived prejudice to plaintiff. The Court has factored into this determination that under the protocols for the Fourth Judicial District that were in place at the time the motion was argued, jury trials were not being conducted, although while this Decision and Order were being prepared, the protocols were revised to allow for jury trials to resume. Indeed, although not a certainty, it is unlikely that a jury trial in this action could be conducted prior to summer, 2021. Therefore, there is sufficient time for defendants to schedule and conduct an independent medical examination. Based upon the foregoing, defendants’ motion to vacate the note of issue and other relief is denied. Defendants are permitted to conduct an independent medical examination of plaintiff within sixty (60) days of the date of this Decision and Order. Accordingly, it is hereby ORDERED, that defendants’ motion is denied; and it is further ORDERED, that defendants are permitted to conduct an independent medical examination of plaintiff within sixty (60) days of the date of this Decision and Order; and it is further ORDERED, that this matter is placed on the trial calendar for a jury trial commencing Monday, July 12, 2021, at 9:30 a.m. at the Warren County Courthouse, 1340 State Route 9, Lake George, New York, and continuing through Friday, July 16, 2021, as may be necessary; and it is further ORDERED, that the jury trial as scheduled above shall be conducted only if operating protocols of the Fourth Judicial District permit jury trials to be conducted on July 12, 2021. The within constitutes the Decision and Order of this Court. Signed this 5th day of March, 2021, at Lake George, New York. JUSTICE OF THE SUPREME COURT The Court is uploading the Decision and Order to the New York State Courts Electronic Filing System (NYSCEF). Such uploading does not constitute service with notice of entry (see 22 NYCRR 202.5-b [b] [2] Distribution: Cassandra A. Kazukenus, Esq. James D. Taylor, Esq. Dated: March 5, 2021
