The defendants seek dismissal of the action for the plaintiff's failure to appear at three scheduled dates for the IME.

Plaintiff himself does not make an affirmation to explain his absence at the IME. The failure to appear for an IME without giving the doctor or defense counsel the courtesy of a reason, thereby causing motion practice, is inexcusable. If plaintiff believes he does not have to engage in discovery obligations, he should discontinue his action.

The Court notes that plaintiff has been represented by different counsel. It is unfair to saddle his present new counsel with past behaviors. Counsel for the parties appeared before the Court on May 31, 2012, for a conference on this motion by defendants. As stated at the conference, the plaintiff shall attend an IME to be arranged between counsel and that must be held on or before July 18, 2012. If plaintiff does not appear for this IME to be held on or before July 18, 2012, the Court will dismiss the action based on a letter application to the undersigned, with copies to all concerned, asking for dismissal.

Defense counsel seeks enforcement of the terms of the stipulation dated March 26, 2012, that was so ordered by Justice Ritholtz. The Court notes that the notice of motion specifically makes no separate request for reimbursement of missed IME dates. At the time of the signing of the stipulation, which is available for examination at the Office of the Queens County Clerk in [*2]Jamaica, the plaintiff was then represented by Hallock & Malerba. Defense counsel points to the provision of the stipulation requiring plaintiff to reimburse the IME doctor for the first two missed sessions. No rate of pay is cited, although at the conference on May 31, 2012, before this Court, defense counsel wanted a payment of $250 for each missed IME.

A telephone call was made to Mary Malerba, Esq., by the Court, at the conference, in the presence of both counsel. Ms. Malerba did not have a copy of the March, 2012 stipulation and was unaware of it. She also stated that for missing the first two IMEs, no such charge should be demanded, although she agreed that repeated no-shows should be charged. Ms. Malerba maintained that she would not have agreed to such a provision.

Defense counsel was not able to cite the name of the lawyer who signed the stipulation for Hallock & Malerba. It is a scrawl of a signature, and this Court has compared all other signatures on other documents in this case in an effort to find out who signed the stipulation that was so ordered by Justice Martin Ritholtz. Defense counsel further explained that Hallock & Malerba was not present at the conference before Justice Ritholtz when the stipulation was faxed over to plaintiff's counsel who faxed it back in signed form.

Under these circumstances, on this motion, the Court grants the motion only to the extent of ordering an IME to be held on or before July 18, 2012. The issue of reimbursement of the missed IMEs is denied without prejudice to being raised subsequently following the verdict or settlement of this action, and possibly with regard to any division of fees between the law firms that have represented the plaintiff.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

June 12, 2012