In Drapper v Horan, 2018 WL 4623041, 2016 N.Y. Slip Op. 06330 (1st Dep’t September 27, 2018), the First Department affirmed a lower Court’s denial of a motion to vacate a note of issue and compel a medical examination of an injured plaintiff despite the service of a supplemental bill of particulars for new treatment relative to a traumatic brain injury.
Plaintiff in this matter stated that he suffered injuries, including a traumatic brain injury, when the car he was driving was rear-ended by the defendants. Following plaintiff’s disclosures that he was suffering headaches and that an MRI of his head revealed traumatic injury, plaintiff filed a note of issue. Defendants, thereafter failed to notice a physical examination, and then filed an untimely motion to vacate, which was denied.
Prior to trial, plaintiff filed a supplemental bill of particular that stated plaintiff received additional medical treatment for his traumatic brain injury. Thereafter, defendants renewed their motion to vacate and compel plaintiff to appear for a medical examination.
The defendants failed to offer an excuse why they originally failed to notice a medical examination before the note of issue was filed, and also failed to demonstrate how the additional treatment was an “unusual or unanticipated circumstance” to warrant vacatur and a medical examination. As such, the 1st Department affirmed the lower court’s denial of a motion to vacate a note of issue and compel a medical examination of an injured plaintiff.
Although this case leaves open the possibility of further discovery after a supplemental bill of particulars is made prior to trial, this case is also an example of why experienced defense counsel do not rely on curing their missed deadlines based on later filings, but make sure to adhere to discovery and motion deadlines. Both, failing to timely notice a medical examination and timely file a motion to vacate a note of issue can be detrimental to defending the case and difficult, if not impossible, to cure prior to trial.
Thanks to Jonathan J. Pincus for his contribution to this post.