This is a personal-injury action brought by plaintiff, Hassene Ghodbane, against defendants, 111 John Realty Corp., Braun Management Inc., and Gemstar Construction Corp. 111 John Realty owned, and Braun managed, the premises in which plaintiff fell and was injured. Braun had hired Gemstar to do renovations to the premises. Only plaintiff's claims against Gemstar remain.^[FN1]

During pretrial discovery in this action, plaintiff underwent numerous independent medical examinations (IMEs). Plaintiff filed the note of issue in the action in March 2021. (See [*2]NYSCEF No. 190.) Trial in the action is currently scheduled to begin on September 22, 2025.

In August 2025, plaintiff served on defendant a new witness disclosure for Dr. Stuart B. Kahn. According to plaintiff, Dr. Kahn is a disability and life-care-planning expert who will testify to plaintiff's future cost of health care, as reflected in plaintiff's new supplemental bill of particulars. (NYSCEF No. 332 at 1, ¶ 2 [pdf pagination] [expert witness disclosure]; NYSCEF No. 325 [5th supplemental bill of particulars].) Plaintiff says that Dr. Kahn will base his testimony on plaintiff's prior medical records, his own personal examination of plaintiff (conducted in July 2025), and diagnostic testing of plaintiff that occurred from 2014 to 2024. (NYSCEF No. 332 at 15 [pdf pagination].)

Defendant now moves under 22 NYCRR 202.21 (d) for permission to conduct a post-note IME of plaintiff. (NYSCEF No. 334 [order to show cause].) The motion is granted.

Defendant seeks to conduct a new IME of plaintiff on the ground that (1) plaintiff never previously identified a pain care expert or a specific amount in future medical expenses; and (2) Dr. Kahn's opinion is based on new evidence he had at his disposal, including his own physical examination of plaintiff in July 2025 and various radiological scans from 2024. Otherwise, defendant contends, it will be prejudiced by being forced to rely on the results of examinations conducted several years ago. (NYSCEF No. 336 at 3.)

Plaintiff argues that no unusual or unanticipated circumstances warrant a new IME. According to plaintiff, defendant is concerned about potential impeachment of its expert due to the length of time since the expert's last examination of plaintiff—and, plaintiff says, that concern is not enough to support requiring him to appear for a post-note IME. (NYSCEF No. 342 at 7.)

Before the note of issue is filed, a plaintiff may be subject to further IMEs if a "defendant seeking a further examination . . . demonstrate[s] the necessity for it." (Rebollo v Nicholas Cab Corp., 125 AD3d 452, 452 [1st Dept 2015].) If the note of issue has been filed, "a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination." (Id. [internal quotation marks omitted]; see 22 NYCRR 202.21 [d].)

Defendant has not shown that it is necessarily entitled to conduct a new IME of plaintiff merely because plaintiff underwent an additional examination after the note of issue was filed. Nor is the court persuaded that the passage of several years since plaintiff's pre-note-of-issue exams is sufficient to warrant an additional IME now. (See Woznicki v Lynn Terrace Apts., Section 1, Inc., 22 AD2d 883, 883 [1st Dept 1964] [holding that a "long adjournment" granted on eve of trial did not constitute unusual or unanticipated circumstance warranting post-note discovery].)

Nonetheless, this court concludes that unusual and unanticipated circumstances exist that warrant an additional, post-note IME. Plaintiff has submitted a new supplemental bill of particulars which now—for the first time—reflects plaintiff's expert economists' estimation of $4,376,436 in future healthcare costs. (Compare NYSCEF No. 325 at 1 [5th supplemental BP] with NYSCEF No. 142 [4th supplemental BP].) Plaintiff's economists based those damage estimates, in part, on Dr. Kahn's report. (See NYSCEF No. 324 at 4-5 [supplemental expert disclosure].) And Dr. Kahn's report is based, in part, on his evaluation of new information, [*3]including the 2024 testing and 2025 physical examination. (Cf. Gomez v Long Is. R.R., 202 AD2d 633, 633 [2d Dept 1994] [denying motion to compel vocational rehabilitation examination when, among other things, defendant had not "explained why the information obtained from the prior examination and from other discovery would not be adequate for use by its physician"].) Dr. Kahn's report also reflects his observation that plaintiff's condition has deteriorated in some respects. (NYSCEF No. 332 at 8 [pdf pagination].) That observation also supports defendant's request for a further IME. (See Huggins v New York City Tr. Auth., 225 AD2d 732, 733 [2d Dept 1996] [holding that additional independent psychiatric testing was required "in view of [plaintiff's] allegations as to the duration and severity of his psychiatric injuries in his supplemental bill of particulars, which was served two years after his examination by the appellant's expert"].)

Furthermore, plaintiff has not shown that he will suffer prejudice from an additional IME, particularly given that this court will not be removing this action from the trial queue. (See Huggins, 225 AD2d at 733 ["By retaining the matter on the trial calendar, the plaintiff will suffer no prejudice as a result of submitting to an additional examination."].)

Accordingly, it is

ORDERED that defendant's motion for post-note-discovery to conduct a further IME of plaintiff is granted; and it is further

ORDERED that defendant conduct the IME on or before October 3, 2025, and that the IME report of defendant's examining physician be exchanged on or before November 3, 2024; and it is further

ORDERED that the trial of this matter, currently scheduled to begin on September 22, 2025, is hereby adjourned to November 12, 2025.