

Shulman v ZFX, Inc. (2020 NY Slip Op 03628)





Shulman v ZFX, Inc.


2020 NY Slip Op 03628


Decided on June 25, 2020


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 June 25, 2020

Renwick, J.P., Mazzarelli, Webber, Kern, Moulton, JJ.


11726N 300736/16

[*1] Maia Shulman, Plaintiff-Respondent,
vZFX, Inc. also known as ZFX Flying Effects, Defendant-Appellant, Wicked LLC, et al., Defendants. [And A Third-Party Action.]


Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Lori F. Graybow of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about February 22, 2019, which denied defendant ZFX, Inc.'s motion to compel plaintiff to submit to post-note of issue medical examinations, unanimously affirmed, without costs.
The court providently exercised its discretion in denying defendant's motion to compel plaintiff to submit to medical examinations (IMEs) (see Parato v Yagudaeu, 46 AD3d 332 [1st Dept 2007]; Colon v Yen Ru Jin, 45 AD3d 359 [1st Dept 2007]). Defendant brought this motion more than 14 months after the note of issue was filed and almost one year after obtaining additional time for the designation of IMEs post-note of issue, without offering any excuse for its inaction or alleging unusual or unanticipated circumstances that would warrant the relief requested. Moreover, defendant had violated three prior court orders setting deadlines for the designation and completion of medical examinations.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 25, 2020
CLERK


