Cabrera v. Abaev , 150 A.D.3d 588 ( 2017 )

Cabrera v Abaev (2017 NY Slip Op 04084)

Cabrera v Abaev

2017 NY Slip Op 04084

Decided on May 23, 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 May 23, 2017
Friedman, J.P., Moskowitz, Feinman, Gische, Kahn, JJ.

4088N 4087

[*1] Omadil Cabrera, Plaintiff-Appellant,

v

Yakov Abaev, Defendant, Dennis Pantoja, et al., Defendants-Respondents.

The Lambrou Law Firm, P.C., New York (Lambros Y. Lambrou of counsel), for appellant.

Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondents.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about January 9, 2017, which, to the extent appealed from as limited by the briefs, granted defendants-respondents' post-note of issue motion to compel plaintiff to appear for independent medical examinations, unanimously affirmed, without costs.

"Trial courts are authorized, as a matter of discretion, to permit post-note of issue discovery without vacating the note of issue, so long as neither party will be prejudiced" (Cuprill v Citywide Towing and Auto Repair Services, — AD3d &mdash, 2017 NY Slip Op 02729 [1st Dept 2017]). We perceive no prejudice here, as the matter remains on the trial calendar (see Suarez v Shapiro Family Realty Assoc., LLC, — AD3d &mdash, 2017 NY Slip Op 02914 [1st Dept 2017]; see e.g. Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 168 AD2d 376, 376-377 [1st Dept 1990]). Moreover, the court providently exercised its discretion in directing plaintiff to appear for the medical examinations, given defendants' short delay in designating the physicians (see Henderson-Jones v City of New York, 104 AD3d 411 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 23, 2017

CLERK