Rodriguez v. Sau Wo Lau
Cases that cite this one
10 later published cases cite this decision.
- Gianacopoulos v. Corona (Appellate Division of the Supreme Court of New York 2015)
- Chong v. Chaparro (Appellate Division of the Supreme Court of New York 2012)
- Spano v. Omni Engineering, LLC (Appellate Division of the Supreme Court of New York 2010)
- Owen v. Lester (Appellate Division of the Supreme Court of New York 2010)
- White v. Mazella-White (Appellate Division of the Supreme Court of New York 2009)
- Jones v. Grand Opal Construction Corp. (Appellate Division of the Supreme Court of New York 2009)
- Utica Mutual Insurance v. P.M.A. Corp. (Appellate Division of the Supreme Court of New York 2006)
- Gomez v. New York City Transit Authority (Appellate Division of the Supreme Court of New York 2005)
- Simpson v. City of New York (Appellate Division of the Supreme Court of New York 2004)
- Matter of City of New York (New York Supreme Court, Kings County 2004)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Barron, J.), dated December 12, 2001, which, in effect, granted the defendant’s motion pursuant to CPLR 3124 and 3126 to dismiss the complaint unless the plaintiff Fidelio Rodriguez appeared, for physical examinations.
Ordered that the order is reversed, on the law, with costs, and the motion is denied.
The defendant waived her right to conduct physical examinations of the injured plaintiff by failing to arrange for such examinations within the 45-day period set forth in the discovery order of the Supreme Court (see James v New York City Tr. Auth., 294 AD2d 471; Schenk v Maloney, 266 AD2d
The Supreme Court improvidently exercised its discretion in directing physical examinations of the injured plaintiff as the defendant’s motion to dismiss was made four months after service of the note of issue and certificate of readiness. Since the defendant failed to move to vacate the note of issue within 20 days after its filing (see 22 NYCRR 202.21 [e]; Schenk v Maloney, supra; Fox Co. v Sleicher, 186 AD2d 537), she was required to demonstrate that unusual or unanticipated circumstances developed subsequent to the filing requiring additional pretrial proceedings to prevent substantial prejudice (see 22 NYCRR 202.21 [d]; Audiovox Corp. v Benyamini, 265 AD2d 135). The defendant failed to establish any unusual or unanticipated circumstances subsequent to the filing of the note of issue which would warrant relieving her of her failure to timely conduct the physical examinations (see 22 NYCRR 202.21 [d]; James v New York City Tr. Auth., supra; Schenk v Maloney, supra; Gill v United Parcel Serv., supra; Mayo v Lincoln Triangle Assoc., supra). Feuerstein, J.P., Smith, Friedmann and Adams, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.