Supreme Court, Westchester County, May 25, 2022

Maroney O'Connor LLP, New York City, for Liberty Lines Transit, Inc. and others, defendants.

Haworth Barber & Gerstman, LLC, New York City, for Joseph Barrella, defendant.

Jonathan Rice, Dobbs Ferry, for plaintiff.

The motions are determined as follows:

{**75 Misc 3d at 903}Plaintiff commenced this personal injury action on July 2, 2020 (NY St Cts Elec Filing [NYSCEF] Doc No. 48, exhibit A), alleging that she was injured on September 4, 2019, while a passenger on a bus negligently owned, operated, managed, and maintained by defendants after defendant Joseph Barrella negligently operated his vehicle causing the bus to stop suddenly, thereby causing plaintiff's injuries. On August 5, 2020, defendants Liberty Lines Transit, Inc., County of Westchester, Westchester County Department of Public Works and Transportation, Bee Line Bus System and Romualdo Castro (Liberty Lines) interposed an answer. Plaintiff filed an amended complaint on April 8, 2021 (NYSCEF Doc No. 49, exhibit B). On April 28, 2021, Liberty Lines interposed an answer to the amended complaint with cross claims. On June 29, 2021, Barrella filed an answer to the amended complaint with cross claims.

The preliminary conference order filed July 12, 2021, provides that physical examinations are to be held within 45 days of plaintiff's deposition (NYSCEF Doc No. 69, exhibit V). The deposition of plaintiff was held on August 11, 2021 (NYSCEF Doc No. 68, exhibit U). On August 26, 2021, defendant Barrella designated Dr. Johnathan Garay to conduct an independent medical examination (IME) (NYSCEF Doc No. 51, exhibit D). On September 17, 2021, the court directed that [*2]IMEs be completed before December 17, 2021 (NYSCEF Doc No. 70, exhibit W). On September 17, 2021, plaintiff sent a letter inquiring if defendants would share the IME and advising that plaintiff would not be produced if defendants failed to confirm sharing (NYSCEF Doc No. 52, exhibit E). On September 29, 2021, plaintiff was advised that the defendants would share (NYSCEF Doc No. 53, exhibit F). On October 5, 2021, plaintiff advised defendants that the retained IME observer was unavailable, and that plaintiff wanted to change the IME date (NYSCEF Doc No. 54, exhibit G). On October 7, 2021, plaintiff submitted a letter declining to produce the client for the IME without plaintiff having control over the car service providing transportation (NYSCEF Doc No. 55, exhibit H).

On October 11, 2021, defendant Barrella designated Dr. Barry Kraushaar to conduct an IME. Defendants further advised plaintiff that defendants would be sharing this exam (NYSCEF Doc No. 57, exhibit J). On October 13, 2021, plaintiff submitted a letter indicating that plaintiff never consented to conducting an IME outside of the county of residence due to{**75 Misc 3d at 904} defendants' delay in conducting the exam, defendants' refusal to allow the daughter's presence, and defendants' refusal to provide a car service that plaintiff can control (NYSCEF Doc No. 58, exhibit K). On November 5, 2021 (NYSCEF Doc No. 61, exhibit N), and December 3, 2021 (NYSCEF Doc No. 63, exhibit P), defendant Barrella requested a conference with the court due to plaintiff's refusal to appear for the IMEs.

On March 21, 2022, the parties appeared for a compliance conference wherein the parties argued and discussed the letters uploaded onto NYSCEF detailing their positions and objections regarding the IME. It was resolved at the conference that plaintiff shall appear for the noticed IMEs with Dr. Garay in New York, New York and Dr. Kraushaar in Nanuet, New York, and would be allowed to be present with the IME observer, the neutral interpreter conducting all official interpretation, and the daughter, with car service being provided by the defendants (NYSCEF Doc No. 64, exhibit Q). Subsequently, both doctors, Dr. Garay and Dr. Kraushaar, indicated that plaintiff's daughter would not be allowed in the exam room (NYSCEF Doc No. 65, exhibit R). On March 24, 2022, defendant Barrella requested another conference due to plaintiff's refusal to appear for the IMEs because the doctors would not permit plaintiff's daughter in the exam room along with the interpreter, and IME observer (NYSCEF Doc No. 66, exhibit S). On March 28, 2022, the parties appeared for a compliance conference wherein plaintiff objected to the defendants' interpreter being in the exam room without the plaintiff's daughter, as the plaintiff has memory issues (NYSCEF Doc No. 67, exhibit T). A briefing order was simultaneously issued for the instant motions (NYSCEF Doc No. 44).

Both defendants Liberty Lines and Barrella seek an order, pursuant to CPLR 3126, precluding plaintiff from offering any evidence of her alleged disability at the time of trial based on plaintiff's unwillingness to appear for the IMEs. In the alternative, Liberty Lines and Barrella move for an order compelling plaintiff to appear for the IMEs with Dr. Garay and Dr. Kraushaar without her daughter being present in the exam room. Defendants argue that plaintiff's right to be examined in the presence of both an interpreter and a legal representative is adequately protected as defendants have no objection to plaintiff being accompanied by her retained IME advocate, and defendants will provide a neutral Haitian-Creole interpreter for the examinations from Magna Legal Services. According to{**75 Misc 3d at 905} defendants, plaintiff's requirement that her daughter also be present is superfluous and plaintiff fails to present any legitimate reason for plaintiff to require her daughter to sit in the examination room as well. Defendants contend that plaintiff's arguments regarding memory issues and errors in translation are unfounded and improper because plaintiff was deposed twice in the presence of a neutral Haitian-Creole interpreter, without issue, and plaintiff testified for nearly five hours at her deposition.

According to defendants, plaintiff's objections are not based on legitimate concerns, but [*3]plaintiff's inclination to be obstructive. Defendants contend that preclusion is warranted and plaintiff's willful and contumacious conduct in refusing to appear for court-ordered IMEs for eight months can be inferred from plaintiff previously agreeing to appear for the IME outside of the county of residence, yet declining to appear, based on location.

In opposition, plaintiff asserts that she is not refusing to appear for the IMEs. Plaintiff argues that defendants do not present a legal, medical, scientific, or other reason to justify excluding the plaintiff's daughter from the examination. Nor do defendants provide evidence that the request to exclude the daughter came from the physicians. Plaintiff also argues that it is defendants who do not wish to comply with the order dated March 21, 2022, permitting the daughter in the exam room. Plaintiff concedes that despite court orders to conduct the IMEs, the exams were not conducted due to disputes over the locations of the examinations, who would appear for the exams with plaintiff, who would translate, and how plaintiff would be transported to the exam. According to plaintiff, the daughter's presence in the exam room is necessary because plaintiff is aged, infirm, and physically and mentally impaired, and also to ensure proper translation. Plaintiff's counsel contends that there is the potential for inaccurate translation, in his experience, due to unfamiliarity with specific dialects of non-English speakers. Plaintiff further argues that the IME advocate's presence as well as the daughter's presence are necessary based on evidence of improper conduct and false testimony by doctors. According to plaintiff, defendants fail to articulate how the daughter's presence will impair defendants' ability to conduct a meaningful examination. Plaintiff provides the affidavit of Marie E. Noel, plaintiff's daughter who affirms that she will not interfere in the examinations, but that she is concerned about{**75 Misc 3d at 906} accurate interpretations as well as her mother's recollection of events and information.

In reply, defendants reiterate the arguments in their initial application. According to defendants, plaintiff's interests at her IME are properly protected through the presence of an IME advocate and a neutral interpreter. Defendants argue that plaintiff's opposition fails to provide a valid justification for her willful and contumacious refusal to appear for her IMEs. Defendants also argue that plaintiff fails to offer any legitimate justification for why her daughter needs to be present in an exam room that will already contain: (1) the doctor; (2) the plaintiff; (3) the plaintiff's retained IME observer; and (4) the neutral interpreter.

CPLR 3126 provides that if any party "wilfully fails to disclose information which the court finds ought to have been disclosed" the court may, inter alia, issue an order of preclusion or an order striking the pleadings, dismissing the action, or rendering judgment by default against the disobedient party. "The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court" (Carbajal v Bobo Robo, Inc., 38 AD3d 820, 821 [2d Dept 2007]). "[T]o invoke the drastic remedy of striking a pleading, . . . a court must determine that the party's failure to disclose is willful and contumacious" (Greene v Mullen, 70 AD3d 996, 997 [2d Dept 2010]; see also Maiorino v City of New York, 39 AD3d 601, 601 [2d Dept 2007]). "Willful and contumacious conduct can be inferred from repeated noncompliance with court orders . . . coupled with either no excuses or inadequate excuses" (Russo v Tolchin, 35 AD3d 431, 434 [2d Dept 2006]; see also Prappas v Papadatos, 38 AD3d 871, 872 [2d Dept 2007]).

[1] Defendants have provided and proved the extensive good faith attempts to resolve this dispute and plaintiff's failure to appear for the court-ordered IMEs. Although defendants have provided and proved their good faith attempts to resolve this dispute prior to engaging in motion practice, at this time, the court does not find that plaintiff's conduct rises to the level of "willful and [*4]contumacious" conduct to warrant precluding plaintiff from offering any evidence of her alleged disability at the time of trial. In the interest of determining the action on its merits (see Henry v Datson, 140 AD3d 1120 [2d Dept 2016]), plaintiff shall be allowed a final opportunity to comply. In the event plaintiff fails to comply with the directives herein, defendants{**75 Misc 3d at 907} shall submit an affirmation of noncompliance with a proposed order precluding plaintiff from offering any evidence of her alleged disability at the time of trial.

It is well established that "[a] plaintiff is entitled to have his or her attorney or other legal representative present during an examination as long as that individual does not interfere with the conduct of the examination" (Gonzalez v Red Hook Container Term., LLC, 186 AD3d 1331, 1332 [2d Dept 2020]). A plaintiff "is entitled to be examined in the presence of [his or] her attorney or other legal representative, as well as an interpreter, if necessary, so long as they do not interfere with the conduct of the examination" (Henderson v Ross, 147 AD3d 915, 916 [2d Dept 2017] [citations omitted and emphasis added]). Here, this is a unique case in which there is no objection to the plaintiff's IME observer's presence in the exam room. In accordance with Henderson, a hired interpreter will also be present. The issue is whether plaintiff can have a third person present during the IME, plaintiff's daughter, in effect, to conduct a de facto translation and memory assistance.

[2] The Second Department has not expressly ruled on the issue of whether a plaintiff can have, in addition to an IME observer and an interpreter, another nonlegal representative present during an IME, and the plaintiff has not provided the court with any binding authority that supports her position. Plaintiff's argument that the daughter's presence is necessary based on evidence of improper conduct and false testimony by doctors is unavailing. This is the precise reason why plaintiff will have the IME observer/advocate present during the examination. Also unavailing is plaintiff's argument that the daughter's presence in the exam room is necessary because plaintiff is aged, infirm, and physically and mentally impaired, as plaintiff's daughter would not be allowed to assist or otherwise interfere in the examination. Plaintiff's argument that the daughter's presence is necessary to ensure proper translation as there is the potential for inaccurate translation with specific dialects of non-English speakers is without merit. Defendants have hired or will hire a Haitian-Creole translator for the examinations in the same manner that a Haitian-Creole translator was retained for the General Municipal Law § 50-h hearing and the plaintiff's deposition, without issue. Therefore, defendants' motion compelling plaintiff to appear for an IME with Dr. Garay and Dr. Kraushaar, without the daughter's presence inside the examination room, is granted.{**75 Misc 3d at 908}

[3] CPLR 8106 provides that "[c]osts upon a motion may be awarded to any party, in the discretion of the court." The plaintiff's unjustified reasons for her failures to appear for an IME over an extended period of time necessitated the present motions and resulted in unnecessary legal expenses and a waste of judicial resources. Such unreasonable excuses included: (1) defendants' purported failure to conduct the IME expeditiously, when the delay was in fact occasioned by the plaintiff, who failed to timely secure the IME observer's availability; (2) who would control the car service; (3) the out of county location of the IME, when plaintiff failed to timely object to the IME notice, and when plaintiff initially agreed to appear for the out of county examination but later objected only when plaintiff would not have control of the car service being provided; and (4) who would be allowed to translate. Based thereon, in accordance with CPLR 8202, defendants are each entitled to $100 for costs associated with these motions.

All other arguments raised, and evidence submitted by the parties have been considered by this court, notwithstanding the specific absence of reference thereto. Based on the foregoing, it is [*5]hereby ordered that defendants' motions (seq Nos. 1, 2) are granted to the extent that within 45 days of the date of this decision and order, plaintiff is directed to appear for IMEs with Dr. Garay and Dr. Kraushaar; and it is further ordered that during any IME, one IME observer of plaintiff's choice, currently noticed as Meryl Arbisfeld, shall be allowed to be present in the examination room, as well as one neutral Haitian-Creole interpreter, currently indicated as being from Magna Legal Services; and it is further ordered that, in the exercise of this court's discretion, plaintiff shall make a monetary payment to each defendant, within 15 days of the date of this decision and order, in the amount of $100 for costs associated with bringing this motion, and shall file proof of payment on NYSCEF on or before that date; and it is further ordered that if plaintiff fails to appear for the IMEs or make a monetary payment as directed by the court herein, defendants shall serve on plaintiff and file to NYSCEF, within 60 days of the date of this decision and order, an affirmation of noncompliance with a proposed order precluding plaintiff from offering any evidence of her alleged disability at the time of trial.