Plaintiff commenced this action to recover damages for personal injuries based on violations of the Labor Law and negligence. The parties exchanged discovery and now, based on plaintiff's further claim that he sustained a mental defect as a result of his injuries, defendants move for an order compelling plaintiff to appear for a neuropsychological independent medical examination. Plaintiff cross-moves to extend the note of issue date and consents to the IME on the condition that defendants pay plaintiff's travel expenses to New York. Defendants do not oppose plaintiff's request to extend the note of issue.

The trial court has broad discretion to oversee the discovery process (see Castillo v Henry Schein, Inc., 259 AD2d 651 [2d Dep't 1999]). Furthermore, the statutory disclosure provisions apply to nonresidents as well as residents of the state where the action is pending (see Gazerwitz v Adrian, 28 AD2d 556 [2d Dep't 1967]). [*2]

Contrary to plaintiff's contention, there is no evidence in the record that defendants waived their right to conduct a further medical examination of plaintiff. In any event, plaintiff does not object to the IME per se but, rather, claims that it is unreasonable to pay the cost to travel to New York again for discovery, having previously traveled to New York for medical examinations and a deposition.

A plaintiff who has invoked the jurisdiction of New York State is subject to discovery taking place in New York unless an undue hardship will result (see Gazerwitz, supra; see also Farrakhan v NYP Holdings, 226 AD2d 133 [1st Dep't 1996]). It is not an undue hardship to require plaintiff, who has re-located to North Carolina, to return to New York for further discovery. And, indeed, plaintiff will have to bear the cost of traveling to New York for trial.

Based on the foregoing, it is hereby

ORDERED that plaintiff travel at his own expense to New York for a further independent medical examination when plaintiff is available to travel, but no later than January 31, 2014; and it is further

ORDERED that any further examination before trial shall occur the same day as the further independent medical examination; and it is further

ORDERED that defendants shall provide a copy of the medical report to plaintiff within forty-five (45) days of the IME; and it is further

ORDERED that the parties appear for a further compliance conference on March 14, 2014 at 10:00 a.m. Adjournments are only granted with leave of the Court; and it is further

ORDERED that plaintiff shall file a note of issue on or before April 18, 2014.

The Court read and considered the following documents upon these applications:

PAGES NUMBERED

1.Notice of Motion.........................1-2

Affirmation-Taffet..................1-6

Exhibits............................A-J

2.Notice of Cross-Motion...................1

Affirmation-Nesheiwat...............1-5

Exhibits............................1-4

3.Affirmation in Partial Opposition/

Reply-Taffet........................1-4

Exhibit.............................A

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

May 21, 2013

ENTER

[*3]

HON. JAMES D. PAGONES, A.J.S.C.