You are here: / / THE PRESENCE OF PLAINTIFF’S REPRESENTATIVE IN AN EXAMINATION OF ...
,

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)

You might also like
DEFENDANT CAR RENTAL COMPANY’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT ENTRUSTMENT CASE WAS PROPERLY DENIED; QUESTION OF FACT WHETHER COMPANY KNEW AN UNLICENSED DRIVER WOULD USE THE CAR.
REFUSING SECTION 8 VOUCHERS AS RENT PAYMENT VIOLATES THE WEST SENECA FAIR HOUSING CODE (FOURTH DEPT).
ALTHOUGH NO SPECIAL RELATIONSHIP EXISTED BETWEEN BROKER AND PLAINTIFF, CAUSE OF ACTION BASED UPON PLAINTIFF’S SPECIFIC REQUEST FOR FLOOD INSURANCE (WHICH WAS NOT INCLUDED IN THE POLICY) SURVIVED SUMMARY JUDGMENT.
SUPREME COURT PROPERLY VALIDATED 25 SIGNATURES ON THE DESIGNATING PETITION WHICH HAD BEEN INVALIDATED BY THE BOARD OF ELECTIONS, THEREBY ALLOWING THE DEMOCRATIC CANDIDATE FOR COUNTY EXECUTIVE TO RUN IN THE NOVEMBER ELECTIONS (FOURTH DEPT).
Landlord Failed to Eliminate Triable Issues of Fact Concerning Whether He Had Constructive Notice of the Presence of Lead Paint
THE JUDGE DID NOT FOLLOW THE REQUIRED PROCEDURE FOR FINDING NEGLECT ON A GROUND NOT ALLEGED IN THE PETITION; TO DO SO, THE JUDGE MUST AMEND THE ALLEGATIONS IN THE PETITION TO CONFORM TO THE PROOF AND GIVE THE RESPONDENT TIME TO RESPOND TO THE AMENDED ALLEGATIONS; NEITHER WAS DONE; PETITION DISMISSED (FOURTH DEPT).
Only an “Unexcused” Violation of a Provision of the Vehicle and Traffic Law Constitutes Negligence Per Se—Damages May Include Cost of Demolition of a Building Which Has Been Deemed a Safety Hazard
MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY TO ALLOW RELOCATION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

NON-USE ALONE DOES NOT AMOUNT TO ABANDONMENT OF AN EASEMENT, RPAPL 1951 CANNOT... ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF...