FILED: KINGS COUNTY CLERK 09/18/2020 04:11 PM
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`NYSCEF DOC. NO. 271
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`INDEX NO. 512988/2016
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`RECEIVED NYSCEF: 09/18/2020
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`DECISION AND
`ORDER WITH
`NOTICE OF ENTRY
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`Index No.: 512988/2016
`Docket No.: 2018-11769
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`SUPREME COURT OF THE STATE OF NEW YORK
`APPELLATE DIVISION – SECOND JUDICIAL
`DEPARTMENT
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`LEONARDO GONZALEZ,
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` Respondent,
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`-against-
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`RED HOOK CONTAINER TERMINAL, LLC.,
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` Appellant.
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` O U N S E L O R S:
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` C
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`PLEASE TAKE NOTICE, that annexed is a true copy of a Decision and Order dated
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`September 16, 2020 and duly entered in the office of the Clerk of the Appellate Division of the
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`MORGAN LEVINE DOLAN, P.C.
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`Duane R. Morgan
`Attorneys for Respondent
`18 East 41st Street, 6th Floor
`New York, NY 10017
`(212) 785-5115
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`Supreme Court.
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`Dated: New York, New York
`September 18, 2020
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`By:
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`TO: BETANCOURT, VAN HEMMEN,
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`GRECO & KENYON LLC
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`Attorneys for Appellant
`151 Bodman Place, Suite 200
`Red Bank, New Jersey 07701
`(732) 530-4646
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`FILED: KINGS COUNTY CLERK 09/18/2020 04:11 PM
`NYSCEF DOC. NO. 271
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`INDEX NO. 512988/2016
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`RECEIVED NYSCEF: 09/18/2020
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`Supreme Court of the State of New York
`Appellate Division: Second Judicial Department
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`D63457
`Y/htr
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` AD3d
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`Submitted - May 19, 2020
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`RUTH C. BALKIN, J.P.
`SYLVIA O. HINDS-RADIX
`COLLEEN D. DUFFY
`VALERIE BRATHWAITE NELSON, JJ.
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`2018-11769
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`DECISION & ORDER
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`Leonardo Gonzalez, respondent, v Red Hook
`Container Terminal, LLC, appellant.
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`(Index No. 512988/16)
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`Betancourt, Van Hemmen, Greco & Kenyon LLC, New York, NY (Kristin K.
`Robbins and Jeanne-Marie D. Van Hemmen of counsel), for appellant.
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`Morgan Levine Dolan, P.C., New York, NY (Duane R. Morgan of counsel), for
`respondent.
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`In an action to recover damages for personal injuries, the defendant appeals from an
`order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated August 16, 2018. The order,
`insofar as appealed from, in effect, denied that branch of the defendant’s motion which was to
`exclude any third parties from observing the plaintiff’s medical examination by the defendant’s
`expert.
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`ORDERED that the order is affirmed insofar as appealed from, with costs.
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`In July 2016, the plaintiff commenced this action against the defendant, Red Hook
`Container Terminal, LLC, seeking to recover damages for injuries he alleges he sustained in July
`2015 when he fell approximately 10 to 15 feet from machinery at the Red Hook Terminal, which is
`owned and operated by the defendant. The plaintiff alleges, inter alia, that he sustained permanent
`brain injuries from the accident. The defendant sought a neuropsychological medical examination
`of the plaintiff to assess the plaintiff’s mental status and to evaluate the existence of any cognitive
`impairments. When the plaintiff appeared for the examination, he requested that an individual from
`IME Watchdog, Inc. (hereinafter the third-party observer), be permitted to observe the examination.
`The defendant’s doctor did not allow the third-party observer to be present and thus the plaintiff
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`September 16, 2020
`GONZALEZ v RED HOOK CONTAINER TERMINAL, LLC
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`FILED: KINGS COUNTY CLERK 09/18/2020 04:11 PM
`NYSCEF DOC. NO. 271
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`INDEX NO. 512988/2016
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`RECEIVED NYSCEF: 09/18/2020
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`refused to proceed with the examination. The defendant then moved, inter alia, for an order
`compelling the plaintiff to undergo an examination without a third-party observer. In an order dated
`August 16, 2018, the Supreme Court, in effect, denied that branch of the defendant’s motion which
`was to exclude the presence of any third parties from observing the examination. In October 2018,
`the plaintiff underwent the examination and the third-party observer was present. The defendant now
`appeals the denial of that branch of its motion and seeks to conduct a second examination without
`the presence of the third-party observer.
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`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 (see Matter of Alexander L., 60 NY2d 329, 337; Ponce v Health Ins. Plan of Greater
`N.Y., 100 AD2d 963, 964). In 2017, in Henderson v Ross (147 AD3d 915, 916), this Court
`determined that a plaintiff’s nonlegal representative may also be present during the examination, as
`long as that representative does not interfere with the conduct of the examination. The First and
`Fourth Departments also have permitted a plaintiff to have a third-party observer or watchdog, as
`well as other nonlegal representatives, be present during that plaintiff’s examination unless a
`defendant establishes a justification for excluding that third-party observer or nonlegal representative
`(see Markel v Pure Power Boot Camp, Inc., 171 AD3d 28, 30; Martinez v Pinard, 160 AD3d 440,
`440; Santana v Johnson, 154 AD3d 452, 452; Marriott v Cappello, 151 AD3d 1580, 1583).
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`Here, we agree with the Supreme Court’s determination, in effect, denying that branch
`of the defendant’s motion which was to preclude the third-party observer from attending the
`plaintiff’s examination since the defendant failed to meet its burden of establishing that the third-
`party observer would interfere with the conduct of the plaintiff’s examination (see Henderson v Ross,
`147 AD3d at 916; Guerra v McBean, 127 AD3d 462, 462).
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`The parties’ remaining contentions are without merit.
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`BALKIN, J.P., HINDS-RADIX, DUFFY and BRATHWAITE NELSON, JJ., concur.
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`ENTER:
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` Aprilanne Agostino
` Clerk of the Court
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`September 16, 2020
`GONZALEZ v RED HOOK CONTAINER TERMINAL, LLC
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`FILED: KINGS COUNTY CLERK 09/18/2020 04:11 PM
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`NYSCEF DOC. NO. 271
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`INDEX NO. 512988/2016
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`RECEIVED NYSCEF: 09/18/2020
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`AFFIDAVIT OF SERVICE
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`STATE OF NEW YORK
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`COUNTY OF NEW YORK
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`ss.:
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`DAIDRALYN ENGLISH, being duly sworn, deposes and says:
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`I am not a party to this action, am over 18 years of age and reside at Bronx, New York.
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`On the 18th day of September, 2020, I served a true copy of the annexed:
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`DECISION AND ORDER WITH NOTICE OF ENTRY
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`by e-filing via NYSEF and mailing the same in a sealed envelope, with postage prepaid thereon,
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`in a post-office or official depository of the U.S. Postal Service, addressed to the address of the
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`addressee(s) indicated below, which has been designated for service by the addressee(s) or, if no
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`such address has been designated, is the last-known address of the addressee(s):
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`BETANCOURT, VAN HEMMEN, GRECO & KENYON LLC
`151 Bodman Place, Suite 200
`Red Bank, New Jersey 07701
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`____________________________________
` DAIDRALYN ENGLISH
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`Sworn to before me this
`18th day of September, 2020
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`___________________________
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`Notary Public
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