THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS.

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined the exclusion of plaintiff’s representative (a nurse) from the examination of plaintiff by defendant’s physician in this personal injury (traffic accident) action warranted sanctions:

… [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” … . Nonetheless … 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 … . Here, it was less than two months from the November 16, 2015 examination until the January 5, 2016 motion to preclude, not the 2½ years at issue in Pendergast, the decision relied upon the dissent. Marriott v Cappello, 2017 NY Slip Op 04580, 4th Dept 6-9-17

CIVIL PROCEDURE (EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/NEGLIGENCE (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/PRECLUDE, MOTION TO (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/PHYSICAL EXAMINATION (CIVIL PROCEDURE, EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)/DISCOVERY (EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN, THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF PLAINTIFF BY DEFENDANT’S PHYSICIAN WAS NOT WAIVED, EXCLUSION OF THE REPRESENTATIVE WARRANTED SANCTIONS)