FILED: KINGS COUNTY CLERK 10/07/2020 04:03 P
`FILED: KINGS COUNTY CLERK 10/07/2020 04:03 PM
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`NYSCEF DOC. NO. 273
`NYSCEF DOC. NO. 273
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`INDEX NO. 512988/2016
`INDEX NO. 512988/2016
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`RECEIVED NYSCEF: 10/07/2020
`RECEIVED NYSCEF: 10/07/2020
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`Supreme Court of the State of Pew Work
`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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`_—
`~—
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`(Index No. 512988/16)——__
`sm
`>
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`Betancourt, Van Hemmen, Greco & Kenyon LLC, New York, NY (Kristin K.
`Robbins and Jeanne-Marie D. Van Hemmenofcounsel), 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 damagesfor personalinjuries, the defendant appeals from an
`order ofthe Supreme Court, Kings County (Lawrence Knipel,J.), dated August 16,2018. Theorder,
`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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`ORDEREDthatthe orderis 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 damagesforinjuries he alleges he sustained in July
`2015 whenhefell approximately 10 to 15 feet from machinery at the Red Hook Terminal, whichis
`ownedand 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. Whentheplaintiff 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 thusthe plaintiff
`refused to proceed with the examination. The defendant then moved,inter alia, for an order
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`September 16, 2020
`GONZALEZ v RED HOOK CONTAINER TERMINAL, LLC
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`Page 1.
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`FILED: KINGS COUNTY CLERK 10/07/2020 04:03 P
`FILED: KINGS COUNTY CLERK 10/07/2020 04:03 PM
`
`NYSCEF DOC. NO. 273
`NYSCEF DOC. NO. 273
`
`
`INDEX NO. 512988/2016
`INDEX NO. 512988/2016
`
`
`
`
`
`RECEIVED NYSCEF: 10/07/2020
`RECEIVED NYSCEF: 10/07/2020
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`compellingthe plaintiffto undergo an examination without a third-party observer. In an order dated
`August 16, 2018, the Supreme Court, in effect, denied that branch ofthe defendant’s motion which
`wasto excludethe presenceofanythird parties from observing the examination. In October 2018,
`the plaintiffunderwentthe examination andthe third-party observer waspresent. 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 ofAlexander L., 60 NY2d 329, 337; Ponce v Health Ins. Plan ofGreater
`N.Y., 100 AD2d 963, 964).
`In 2017, in Henderson v Ross (147 AD3d 915, 916), this Court
`determinedthat a plaintiffs 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
`defendantestablishes ajustification for excludingthat third-party observeror 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 defendantfailed to meet its burden of establishing that the third-
`party observer wouldinterfere with the conductofthe plaintiffs 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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`SUPREME COURT, STATE OF NEW YORK
`APPELLATE DIVISION SECOND DEPT.
`|, APRILANNE AGOSTINO, Clerk of the Appellate Division of the Supreme
`Court,SecondJudicia| Department, Gohorellyserasesacer
`thiscopyisacorrecttranscriptionofsaidoriginial. a16se
`this copy withtheoriginalfiled in my office on
`aie
`IN WITNESS WHEREOF| have hereunto set my hahd andaffixed
`thesealofthisCourtonop¥rey
`
`.
`f
`prilanne Agostino
`Clerk ofthe Court
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`-
`AD
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`September 16, 2020
`GONZALEZ v RED HOOK CONTAINER TERMINAL, LLC
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