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ALTHOUGH DEFENDANTS MISSED THE DEADLINE AND THEREBY WAIVED THE RIGHT TO MEDICAL EXAMINATIONS OF PLAINTIFF, THE MOTION TO STRIKE THE NOTE OF ISSUE AND COMPEL AN EXAM SHOUD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to strike the note of issue and certificate of readiness and compel a medical examination of plaintiff should have been granted. Although the defendants missed the agreed deadline for the exam, they had an adequate excuse and there was no prejudice:

Although a defendant waives the right to medical examinations of the plaintiff by failing to conduct them within the time period set forth in compliance conference orders … , “under certain circumstances and absent a showing of prejudice to the opposing party, the court may exercise its discretion to relieve a party of a waiver of the right to conduct a physical examination” … . Here, a scheduled medical examination of the plaintiff failed to happen due to a clerical error by the vendor that scheduled the examination. Consequently, the defendants did not have the opportunity to conduct an independent medical examination of the plaintiff. Further, no prejudice was shown by the plaintiff. Andujar v Boyle, 2021 NY Slip Op 00400, Second Dept 1-27-21

 

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DEFENDANTS WAIVED ANY OBJECTION TO PLAINTIFF’S ATTORNEY BY PARTICIPATING IN THE LITIGATION FOR MORE THAN TWO YEARS AND EIGHT MONTHS WITH KNOWLEDGE OF THE ALLEGED CONFLICT OF INTEREST.
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PLAINTIFF DID NOT PROVE DEFENDANT RECEIVED AND RETAINED THE INVOICES; SUMMARY JUDGMENT ON THE ACCOUNT STATED CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
Defense Counsel’s Failure to Pursue a Minimal Investigation (i.e., Failure to Access Defendant’s Psychiatric Records and Failure to Have the Defendant Examined by an Independent Psychiatrist) Constituted Ineffective Assistance of Counsel—Conviction Reversed
PLAINTIFF’S DECEDENT WAS KILLED BY A DRIVER WHO WAS BEING PURSUED BY THE POLICE; THE POLICE DEPARTMENT’S INTERNAL RULES IMPOSED A HIGHER STANDARD OF CARE FOR POLICE-CHASES THAN THE VEHICLE AND TRAFFIC LAW; THE JURY SHOULD HAVE BEEN TOLD THE INTERNAL RULES COULD BE CONSIDERED ONLY AS SOME EVIDENCE OF NEGLIGENCE; PLAINTIFF’S JUDGMENT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

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PLAINTIFF ALLEGED SHE TRIPPED ON A TWIG ON THE SIDEWALK WHICH WAS NOT ADEQUATELY... DEFENDANT ATTORNEY’S AFFIDAVIT IN SUPPORT OF ADMITTING LAW-FIRM BUSINESS...