| Santana v Johnson |
| 2017 NY Slip Op 06997 |
| Decided on October 5, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 5, 2017
Sweeny, J.P., Renwick, Kapnick, Kern, Moulton, JJ.
4491N 300905/13
v
Curtis Johnson, Jr., et al., Defendants-Appellants.
Cheven Keely & Hatzis, New York (Thomas Torto of counsel), for appellants.
Trivella & Forte, LLP, New York (Arthur J. Muller, III of counsel), for respondents.
Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered August 10, 2016, which granted defendants' motion to preclude plaintiffs from offering at trial the testimony of nonparties IME Watchdog, Inc., Jamal Aaron and Shawn Jerrick, only in the event that those witnesses failed to appear for a deposition within 60 days, unanimously affirmed, without costs.
The motion court providently exercised its discretion in granting defendants' preclusion motion only in the event that the nonparty witnesses failed to appear for depositions concerning their observations at physical examinations of plaintiffs (see CPLR 3126). Plaintiffs are entitled to have a representative present at their physical examinations as long as the representative does not interfere with the examinations conducted by defendants' designated physician or prevent defendants' physician from conducting a meaningful examination (see Guerra v McBean, 127 AD3d 462 [1st Dept 2015]; Henderson v Ross, 147 AD3d 915 [2d Dept 2017]; Marriott v Cappello, 151 AD3d 1580 [4th Dept 2017]. In the present case, there is no contention that the observers interfered with the examinations and the physicians issued thorough reports without indicating that any further examinations were required.
To the extent that this Court has implicitly suggested that a representative can be barred from an examination if the plaintiff fails to demonstrate special and unusual circumstances (see Kattaria v Rosado, 146 AD3d 457 [1st Dept 2017]), that is not the current state of the law in either the First, Second or Fourth Departments and is inconsistent with the general principle that plaintiffs are entitled to have a representative present at their medical examinations (Guerra at 462; Henderson at 916; Marriott at 1582.
To the extent defendants sought a pretrial order precluding testimony of the observers as cumulative of plaintiffs' anticipated testimony, the order denying that request is not
appealable (see Casler Masonry, Inc. v Barr & Barr, Inc., 118 AD3d 609, 610 [1st Dept 2014]; Santos v Nicolas, 65 AD3d 941 [1st Dept 2009]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 5, 2017
CLERK