SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1207
CA 13-00577
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
CIPRIANA MARTINEZ, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
WILLIAM T. MURDOCK AND EMILY A. MURDOCK,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)
LAW OFFICES OF MARC JONAS, UTICA (JASON D. FLEMMA OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
SANTACROSE & FRARY, ALBANY (ELISE CASSAR OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Oneida County (David
A. Murad, J.), entered January 7, 2013. The order granted that part
of defendants’ motion to vacate plaintiff’s note of issue and
certificate of readiness.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when the vehicle in which she was a passenger
was struck by a vehicle owned by defendant Emily A. Murdock and
operated by defendant William T. Murdock. Following the discovery of
documents and the depositions of the parties, plaintiff served
defendants on or about March 26, 2012 with a notice of availability
for medical examination pursuant to 22 NYCRR 202.17 (notice), which
set forth May 4, 2012 as the date of plaintiff’s availability for the
medical examination. Defendants scheduled the medical examination for
June 11, 2012, but plaintiff advised defendants that she would not
appear for it because the date was beyond the time frame of “not less
than 30 nor more than 60 days after service of th[e] notice,” as set
forth in 22 NYCRR 202.17 (a) and recited in the notice. Plaintiff did
not appear for the scheduled medical examination and, on July 6, 2012,
filed her note of issue and certificate of readiness. In appeal No.
1, plaintiff appeals from an order granting that part of defendants’
motion to vacate her note of issue and certificate of readiness and,
in appeal No. 2, plaintiff appeals from that part of an order granting
those parts of the same motion for an order compelling plaintiff to
appear for a medical examination and affording defendants an extension
of time in which to file any “dispositive motions.”
-2- 1207
CA 13-00577
We reject plaintiff’s contention in appeal No. 1 that Supreme
Court abused its discretion in striking the note of issue and
certificate of readiness. Pursuant to 22 NYCRR 202.1 (b), the court
“[f]or good cause shown, and in the interests of justice . . . may
waive compliance with any of the rules in this Part, other than
sections 202.2 and 202.3, unless prohibited from doing so by statute
or by a rule of the Chief Judge.” We conclude that the court properly
waived the time requirements of 22 NYCRR 202.17 (a) in the interests
of justice because defendants established good cause by showing that
the medical examination was scheduled to occur only 16 days after
plaintiff’s notice expired, and plaintiff did not establish that she
was prejudiced by the extension of time (see generally Hall & Co. v
Steiner & Mondore, 147 AD2d 225, 227).
In light of our determination in appeal No. 1 that the note of
issue and certificate of readiness was properly vacated, there is no
bar to the continuance of discovery (see generally Furrukh v Forest
Hills Hosp., 107 AD3d 668, 669), or to the filing of “dispositive
motions” by defendants (see generally CPLR 3212 [a]). We therefore
dismiss as moot plaintiff’s appeal from the order in appeal No. 2 (see
generally Meabon v Town of Poland, 108 AD3d 1183, 1185).
Entered: November 15, 2013 Frances E. Cafarell
Clerk of the Court