deposition contradicting bill of particulars ny state

(See Mangione v Jacobs, 37 Misc 3d 711 (Sup Ct, Queens County 2012).'ĭefendants' counsel sent plaintiff's counsel another letter, this one dated March 5, 2019, that advised that defendants' counsel had scheduled an IME with an orthopedist for March 28, 2019. The bill of particulars stated that plaintiff was given a 'ecommendation for nterior ervical iscectomy and usion, with instrumentation and llograph at C6-C7 level.'īy a Januletter to plaintiff's counsel, defendants' counsel acknowledged receipt of the bill of particulars and 'demand that plaintiff appear for an independent medical examination prior to her surgery.' Defense counsel cautioned that 'hould you refuse to allow us to conduct an of prior to any surgery, and does in fact undergo a surgical procedure, we will find actions to be spoliation of evidence and seek all appropriate remedies. In her Janubill of particulars, plaintiff claimed that she suffered, among other things, disc herniations at C4-C5 and C6-C7, a disc bulge at C3-C4, and bilateral C6-C7 radiculopathy. Approximately six months later, plaintiff commenced this action to recover damages for her alleged personal injuries. On October 18, 2017, plaintiff was injured as a result of a motor vehicle accident involving a vehicle operated by defendant Nelson and owned by defendant DC & E Transport Corp. The court further concludes that defendants' motion is premature because discovery regarding information relevant and material to the spoliation issue has not been conducted, and neither defendants nor plaintiff have submitted medical evidence bearing on the issue. Hambleton, Esq., Callahan & Fusco, LLC, New York, NY, for defendantsĭefendants' motion raises an issue on which there is little decisional law in New York: whether spoliation sanctions may be imposed on a tort plaintiff who undergoes surgery prior to submitting to a CPLR 3121 'independent medical examination' ('IME')? For the reasons that follow, the court concludes that spoliation sanctions may be imposed on a plaintiff who fails to submit to a so-called IME before having surgery on a body part that the plaintiff claims was injured as a result of a defendant's allegedly tortious conduct. Zieher, Esq., Subin Associates, LLP, New York, NY, for plaintiffĬhristian W. Gilbert Nelson and DC & E TRANSPORT CORP., Defendants. This opinion is uncorrected and subject to revision before publication in the printed Official Reports. Where it appears that a party other than the moving party, is entitled to a summary determination, the administrative law judge may grant such determination without the necessity of a cross-motion.Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. The motion shall be denied if any party shows sufficient basis to require a heating of any issue of fact. The motion shall be granted if, upon all the papers and proof submitted, the administrative law judge finds that it has been established sufficiently that no material and tribal issue of fact is presented and that the administrative law judge can, therefore, as a matter of law, issue a determination in favor of any party. The affidavit, made by a person having knowledge of the facts, shall recite all the material facts and show that there is no material issue of fact to be tried and that the facts mandate a determination in the moving party's favor. Such motion shall be supported by an affidavit, by a copy of the pleadings, and by any other available proof. (1) After issue has been joined, any party may move for summary determination.

Deposition contradicting bill of particulars ny state