FILED: NEW YORK COUNTY CLERK 05/07/ :02 PM INDEX NO /2016 NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 05/07/2018

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1 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EARL LND, JR. AND DOROTHY LND, -X Plaintiffs, NOTCE OF APPEAL ndex No /2016 -against- Assigned to: Acting Supreme Court Judge Barbara Jaffe TSHMAN CONSTRUCTON CORPORATON OF NEW YORK and TSHMAN CONSTRUCTON CORPORATON Defendant(s), X COUNSELOR(S): PLEASE TAKE NOTCE, that the above-named Lind Plaintiffs hereby appeal to the Appellate Division, First Department, from an Order of the Supreme Court, New York County ( Barbara Jaffe, acting Supreme Court Judge) dated May 1, 2018, entered on May 3, 2018 and served with Notice of Entry on May 4, The Order appealed is actually the second Order issued by Judge Jaffee on the Tishman Defendants' (Tishman Construction Corporation of New York and Tishman Construction Corporation) motion to compel the severely injured and 100% totally disabled Plaintiff, Earl Lind, who resides in Staten sland, and whose action is pending in New York County, to travel over two hours, each way, to attend a defense physical with a defense doctor, "Dr. Rich", in Nassau County. 1 of 47

2 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 Judge Jaffee's first order which granted the Tishman Defendants' motion to compel the Nassau County defense physical was granted on January 16, 2018 and is attached hereto as EXHBT 1A. nexplicably, Judge Jaffee's above January 16, 2018 order which granted the Tishman Defendants' motion to compel this Nassau County defense physical, was granted BEFORE the February 8, 2018 Notice date for this defense motion and BEFORE the Lind opposition was even due, much less filed. The Tishman Defendants' Notice of Motion, with the notice date of February 8, that is, more than three weeks AFTER Judge Jaffee's January 16, 2018 order granting this defense motion - is attached hereto as EXHBT B. n her January 16, 2018 order which granted the Tishman Defendants' motion, on the merits, Judge Jaffe gave her reason for granting the defense motion, albeit three weeks BEFORE the noticed return date, and two weeks before the Lind opposition was even due, as follows: "plaintifffailed to move to " ( 22 NYCRRR (a). modify or vacate the ME notice (sic*) (*t is conceded that the Tishman Defendants failed to serve any "notice" whatsoever. Rather, defendants only sent a letter to the Lind Plaintiffs to schedule the defense physical.) 2 of 47

3 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 n her January 16, 2018 order which granted the Tishman Defendants' motion, on the merits, Judge Jaffe also included a threat against the Lind Plaintiffs, as follows: including " failure to appear for the ME may result in sanctions, dismissal of the action" action ". Attached hereto as EXHBT 2 is the May 1, 2018 Order appealed, wherein Judge Jaffee " defends" the issuance of her January 16, 2018 order which granted the Tishman Defendants' motion, ex-parte and on the merits, stating that she granted the motion "Given the apparent merit of defendants motion...". n her May 1, 2018 Order appealed (EXHBT 2) Judge Jaffee, inter alia,: - improperly held that the Lind duly served and efiled " "Plaintiffs Notice For Physical Examination And Exchange of Medical nformation", dated October 24, 2016 (NYSECF doc # 24; pages 14-15) was " face" defective on its although the parties had agreed at the November 16, 2016 Preliminary Conference, and at subsequent court conferences, to adjourn the original Notice date; - improperly held that the Tishman Defendants had not waived the right to object to the Lind duly served and efiled " "Plaintiffs Notice For Physical Examination And Exchange of Medical nformation", dated October 24, 2016 (NYSECF doc # 24; pages 14-15); improperly held that the Tishman Defendants were not required to " object to the Lind duly served and efiled "Plaintiffs Notice For Physical Examination And Exchange of Medical dated October 24, 2016 (NYSECF doc ¹ 24; pages 14-15); nformation", 3 of 47

4 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/ " improperly held that the Lind had "abandoned the " duly served and efiled "Plaintiffs Notice For Physical Examination And Exchange of Medical nformation", dated October 24, 2016 (NYSECF doc 0 24; pages 14-15); Lind - improperly held that the Tishman Defendants were not required to comply with 22 NYCRR 202.7[a]). t is undisputed that the Tishman Defendants failed to object to the Lind above October 24, 2016 Notice. t is also undisputed that the Tishman Defendants failed to move for a protective order, or to vacate or modify the Lind above October 24, 2016 Notice. Judge Jaffee also improperly excused the Tishman Defendants's failure to comply with The Uniform Rules for Trial Courts, specifically 22 NYCRR Judge Jaffee further ignored the precedent set forth by this Court in Hamlin v Mensch, 205 A.D.2d 452 ( 1st Dept, 1994) which affirmed the AS Court's order which refused to compel a defense physical examination of the injured Plaintiff "where defendant failed to comply with 22 NYCRR by objecting or otherwise timely responding to plaintiffs notice of availability for physical " examination. 4 of 47

5 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 The Hamlin Court cited Becker v Chmura, 139 AD2d 826, ( Third Dept, 1988) which held that, " Defendant, having failed to move against plaintiff's notice, is not entitled to physical examinations other than in accordance with its terms". Here, the Lind Notice sets out the terms of Plaintiff's examination and it is undisputed that the Tishman Defendants failed to either object to Plaintiff's Notice or to move to vacate or modify Plaintiff's Notice and its terms. Any fair comparison of the two orders issued by Judge Jaffee, the January 16, 2018 preemptive order ( EXHBT 1A) which granted, ex-parte, and, on the merits, the Tishman Defendants' motion to compel the Nassau County defense physical, with the May 1, 2018 Order appealed (EXHBT 2) demonstrates that Judge Jaffee applied a different Rule of Law to the Lind Plaintiffs than she did to the Tishman Defendants in the May 1, 2018 order appealed ( EXHBT 3). n her January 16, 2018 ex-parte order ( EXHBT 1A) Judge Jaffee admonished the Lind Plaintiffs for failing to move for a protective order ( albeit against the Tishman Defendants' scheduling letter ) and threatened dismissal of the Lind Labor Law action. But, in her May 1, 2018 order appealed ( EXHBT 3), Judge Jaffee improperly excused the Tishman Defendants for failing to move for a protective Order as to the Lind Notice. 5 of 47

6 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 This would be the second time that Judge Jaffee improperly imposed a burden on the Lind Plaintiffs, while continuing to excuse the Tishman Defendants' pattern of non-compliance with discovery and defense responses that consist of a catalogue of prolix objections to the most basic discovery, including the Lind CPLR 3101(f) insurance demand. Attached hereto as EXHBT 4 is the Lind Notice of Appeal of Judge Jaffee's January 30, 2018 Order which denied the Lind motion as to the Tishman Defendants' discovery abuses where there was not so much as a direction by Judge Jaffee to the Tishman Defendants' to comply with the court's own orders. n this January 30, 2018 Order too Judge Jaffe made no mention of the fact that the Tishman Defendants had failed to move for any protective order, or to modify or vacate any of the Lind Plaintiff's demands/notices and had failed to move to vacate any one of the three court orders the Tishman Defendants' had violated. nstead, Judge Jaffee ruled against the Lind Plaintiffs and erroneously denied the Lind motion as " premature" because the Lind Plaintiffs had not first moved to compel disclosure, and that a motion to compel disclosure was a prerequisite to the Lind CPLR 3126 Motion. CPLR ( 3126 does not require any such pre-requisite motion to compel. 6 of 47

7 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 Plaintiff Earl Lind was severely injured on March 27, 2015 in an elevated related construction accident at the Vehicle Security Center at the World Trade Center. Mr. Lind is a veteran construction worker and has been rendered permanently disabled. The Tishman defendants are the General Contractors (GC) at this job site where Mr. Lind, a Worker protected under New York's Labor Law, was injured. This Appeal is taken from each and every part of the Order dated May 1, 2018, entered on May 3, 2018 and served with notice of entry on May 4, (Barbara Jaffe, acting Supreme Court Judge) as well as from the whole thereof. Dated: May 7, 2018 New York, New York Yours., enladette P ella, Esq. BERNADETTE PANZELLA, P.C. Appellate Counsel to Robert Schacht, P.C. For the Plaintiffs Studio Legale American Felt Building 114 East 13th Street, Studio 5A New York, New York BernadettePanzellaPC@yahoo.com TO: ALL COUNSEL OF RECORD NYSCEF LND ndex No / of 47

8 FLED : NEW YORK COUNTY CLERK :15 P N DEX NO / N NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Mt<-K Justice PART ~~ co NDEXNO. wgotgondate 7lkh~ ~~ Moaas ssa. Na g 0 ~'+ The following papers, numbered 1 to, were read on this motion toffor Slotice or MotiopOrder to Show Cause - Affidavits - Exh bits No(s), Answering Affidavits - Exhibit No(s). Replying Amdavits Upon the foregoing papers, ~ it is ordered that this motion s. AÛCd /VlÚhM + Chepe {i/1k</] ) No(s) ac ~ indaphe mo&ad estaunoften ( " pl a (F % D mott¾ a{va cde ~ ~+ meaf n o 0p.fzutt& 2aenca'h trfesear15 ct^r & n&d ~,< ~ g~ ~ikon ~ ~xf & o 8 ~ gp p ~~($ )p ga C4MS )i'a~ ~a'gpss(~~4 d hs a ch ~~y 8 U s! Z S DENED O 8 of 47

9 a 4 JJaJ& ~ 41&1' ~ 4 kkppkbkl %&Va% 4 Al V k '888 ht S V k V 8884 ~ 5 V 4 l NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 NYSCEF DOC. NO. 118 RECEVED NYSCEF: 01/03/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X EARL LND JR. and DOROTHY LND, ndex No.: /2016 -against- Plaintiffs, NOTCE OF MOTON TSHMAN CONSTRUCTON CORPORATON OF NEW YORK and TSHMAN CONSTRUCTON CORPORATON, Defendants X PLEASE TAKE NOTCE that, upon the annexed Affirmation in Support of CAMERON W. BROWN, ESQ., dated the 3rd of January, 2018, together with the exhibits annexed thereto in support, and upon all the pleadings and prior proceedings had herein, Defendants, TSHMAN CONSTRUCTON CORPORATON OF NEW YORK and TSHMAN CONSTRUCTON CORPORATON, by their undersigned attorneys, will move this Court at the Supreme Court of the State of New York, County of New York, 60 Centre Street, Motion Support Part 103, New York, New York, on the at 900 a.m., or as soon thereafter as this matter may be heard, for an order: a. Pursuant to CPLR 3124, compelling Plaintiff to appear at his designated ndependent Medical Examination ("ME"), and; b. For such other and further relief as this Court deems just and proper... 1,,2.<8!!BT '! 3 9 of 47

10 4 ~ JB ~% 4 Vk'4' ~ VVVJl 4 k VQkAJ'O' V a V a 5 V a 'V V M ~ % V 4 ~ NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 NYSCEF DOC. NO. 118 RECEVED NYSCEF: 01/03/2018 PLEASE TAKE FURTHER NOTCE that, pursuant to CPLR Rule 2214(b), answering papers, if any, are to be served at least seven (7) days prior to the return date of the within motion. Dated: January 3, 2018 New York, New York SEGAL MCCAMBRDGE SNGER & MAHONEY, LTD. Attorneys for Defendants TSHMAN CONSTRUCTON CORPORATON and. TSHMAN CONSTRUCTON CORPORATON OF NEW YORK By: Cameron W. Brown, Esq. 850 Third Avenue, Suite 1100 New York, New York (212) TO: Robert Schacht, Esq. Robert Schacht, P.C Clove Road Staten sland, New York of 47 n

11 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 FLED: NEW YORK COUNTY CLERK NYSCEF DOC. NO RECEVED NYSCEF: 05/03/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ')t PRESENT: HON. BARBARA JAFFE PART 12 Justice â â X EARL LND, JR. and DOROTHY LND; NDEX NO /2016 Plaintiffs, MOTON DATE - v - MOTON SEQ. NO. 3 TSHMAN CONSTRUCTON CORPORATON OF DECSON AND ORDER NEW YORK, TSHMAN CONSTRUCTON CORPORATON, Defendants X By notice of motion, defendants move pursuant to CPLR 3124 for an order compelling plaintiff to appear for an independent medical examination (ME). Plaintiffs oppose and, by notice of cross motion, move for a protective order relating to the ME. Defendants oppose the cross motion.. PERTNENT BACKGROUND.. By notice dated October 24, 2016, plaintiffs demanded that defendants conduct a physical examination of plaintiff Earl Lind, Jr., at plaintiffs' counsel's office on Stateri sland at 2pm on January 25, (NYSCEF 139). On November 16, 2016, the parties appeared for a preliminary conference and agreed, as pertinent here, that Earl's ME would be held within 45 days after his completed examination Page of 11 EXMlBT 2 1 of of 47

12 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/ P NDEX NO /2016 NYSCEF DOC. NO. 211 RECEVED NYSCEF: 05/03/2018 before trial (EBT), which was scheduled to be held on or before February 6, The parties' stipulation was so-ordered. (NYSCEF 25). The first compliance conference was held on February 22, 2017, at which a so-ordered stipulation was entered into whereby it was agreed that Earl's EBT would be held on or before May 6, 2017, and the ME within 45 days thereafter. (NYSCEF 31). At the next.compliance conference and by so-ordered stipulation dated July 5, 2017, Earl's EBT was rescheduled for on or before September 13, 2017, and the ME for within 45 days thereafter. (NYSCEF 36). By letter dated October 31, 2017, defendants notified plaintiffs that they had designated a physician to perform Earl's ME on December 19, 201.7, at the physician's office in Uniondale, New York. (NYSCEF 124). n response, by letter dated November 13, 2017, plaintiffs' counsel objected to the location of the ME "as it is in Nassau County and it will be too painful of a ride for my client to travel that far from his home and this would involve he be [sic] in a car for more than 3 hours." She thus advised that defendants should contact her to make different arrangements, and that "[w]e have no problem attending the physical at your office or a Manhattan, Brooklyn location." (NYSCEF 80). The parties were unable to resolve the issue. (NYSCEF 126, 127).. MOTON TO COMPEL Pursuant to 22 NYCRR (a), at any time after joinder of issue and service of a bill of particulars, the party to be examined may serve on all other parties a notice fixing the time and place of the examination. Unless otherwise stipulated, the examination must be held not less than 30 nor more than 60 days after service of the notice, and any party may move to modify or vacate the notice within 10 days of its receipt. Page 2 of 11,2 of of 47

13 NYSCEF DOC. NO. 213 RECEVED NDEXNYSCEF: NO P / /07/2018 NYSCEF DOC. NO. 211 RECEVED NYSCEF: 05/03/2018 Here, plaintiffs' notice was dated and served on October 24, 2016, and purported to schedule the examination for January 25, 2017, more than 60 days from the date of the notice. Having failed to comply with the requirement that the examination be held no more than 60 days from receipt of the notice, the notice is defective on its face. Defendants did not waive their right to object to plaintiffs' notice as 22 NYCRR (a) does not require that an objection be made; rather, it provides that a party"may" "may" party object. (See Resnick v Seher, 198 AD2d 218, 218 [2d Dept 1993] [defendant's failure to object to notice within 10-day period did not warrant denial of motion to vacate notice; rules set forth in 22 NYCRR binding "except where the court otherwise directs"] ; see also Leugemors v Slawinski, 255 AD2d 913 [4* [4 Dept 1998] [court had discretion to grant motion to compel examination.despite argument that objection waivedby failing to conduct examination within time period in examination notice; delay in seeking examination minimal and discovery incomplete]). n any event, plaintiffs apparently abandoned the October 2016 notice and their preferred location of Staten sland for the ME, having failed, at several succeeding compliance conferences, to mention either (NYSCEF 31, 36) and, after receiving designation letter, by objecting solely on the ground that the location proposed by defendants was inconvenient to Earl, and by proposing other options, eg, having the ME at defense counsel's office or anywhere in Manhattan or Brooklyn. demand was also rendered academic by the so-ordered compliance conference stipulations scheduling and rescheduling the ME. (See Henderson-Jones v City of New York, 104 AD3d 411 [1" Dept 2013] [while plaintiff argued that failure to specify time for ME in ME notice in violation of CPLR 3121(a) and 22 NYCRR (a) constituted waiver Page 3 of 11 3 of of 47

14 NDEX No /2016 NYSCEF FLED: DOC. NEW NO. 213 YORK COUNTY CLERK 05/03/ :11 PM RECEVED NYSCEF: 05/07/2018 NYSCEF DOC. NO. 211 RECEVED NYSCEF: 05/03/2018 of ME, ME was directed in so-ordered stipulation and thereby directed by court order, thus removing issue of notice]). By contrast, although defendants did not object to the October 2016 demand, they did not waive their right to an ME, as the parties agreed to future dates for it pursuant to the November 2016, February 2017, and July 2017 so-ordered stipulations. And, while plaintiffs had purported to schedule.the ME on January 25, 2017, having agreed on November 6, 2016 that the ME would be conducted within 45 days after Earl's scheduled EBT on February 7, 2017, the January 25 date was effectively superseded, and at no time in the last year did plaintiffs cite to or rely on. the October 2016 notice whenever the issue of Earl's ME was raised. Rather, it was not until defendants filed this motion that plaintiffs have sought to resurrect the superseded October 2016 notice. Even if plaintiffs had not abandoned their right to choose the location of the ME, a court may vacate a notice providing for an examination to be held at an attorney's office, rather than a medical office, as it is a "common sense notion that medical examinations are more properly conducted in medical offices than in the offices of an attorney." (Resnick, 198 AD2d at ). Moreover, the defendant is entitled to retain a physician of its choosing to examine the plaintiff, as "the defense must be able to retain a doctor in whom they have confidence to not only perform the examination, but to be in a position to testify as well." (Chen v Zhi, 109 AD3d 815 [2d Dept 2013), quoting Chong v New York Downtown Hosp., 2012 WL , 2012 NY Slip Op 32877[U] [Sup Ct, New York County]). "The designation of the doctor who will conduct the independent medical examination of the plaintiff shall not be limited or circumscribed by the plaintiff." (fd at 817). Page 4 of 11 4 of of 47

15 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 FLED : NEW YORK COUNTY CLERK ~ / 2 Pj : 11 Pl ÏNÏÍE x TÜ /2016 NYSCEF DOC. NO. 211 RECEVED NYSCEF: 05/03/2018 Defendants thus establish their entitlement to an order compelling Earl to appear for an ME at the office of their designated physician. Plaintiffs cite no authority to support their argument that because the action is pending in New York County, the ME may only be. conducted in this county. Nor have they demonstrated that having the ME performed on Long sland is an undue hardship for Earl, absent a physician's note. The submitted correspondence between the parties clearly reflects that that they were unable to agree on the location for the ME despite several attempts. (See e.g., letter dated Nov. 13, 2017, from plaintiff's counsel to defense counsel [rejecting location of ME] [NYSCEF 125]; letter dated Nov. 17, 2017, from defense counsel to plaintiffs' counsel ["(t)his letter shall serve as a good-faith effort to address your ( ) response before a tnotion to compel your client's appearance at his (ME)... is necessary] [NYSCEF 126]; letter dated Nov. 28, 2017, from plaintiffs' counsel ["(i)n response to your... letters (sic) request for discovery... and your response to plaintiff's rejection of the location of plaintiff's defense physical in Nassau County,, be advised that plaintiff's position has not changed."] [NYSCEF 127]). Consequently, an affirmation of good faith is not required. (See Baulieu v Ardsley Assocs. LP.,84AD3d 666 [1" Dept 2011] [failure to provide affirmation of good faith excusable as any effort to resolve dispute without judicial intervention would have been futile]).. CROSS MOTON FOR PROTECTVE ORDER Based on the above, plaintiffs' cross motion for a protective order is denied. However, address certain allegations set forth therein. My Part Rules, available on the Court's website at Rules.pdf, strongly discourage motions relating to discovery, and provide that "[i]f a discovery dispute arises after the issuance of a preliminary or compliance conference order, it must be directed to the Part Clerk who will Page 5 of of ll 15 of 47

16 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 FLED: NEW YORK COUNTY NYSCEF DOC. NO. 211 RECEVED NYSCEF: 05/03/2018 promptly schedule a new conference or advance the date of a previously-scheduled conference." Experience shows that the resolution of discovery issues is often best accomplished through discussion among the attorneys with or without the assistance of a court attorney, rather than by motion. The court record reflects the following: By motion dated October 9, 2017 (sequence two), plaintiffs moved for orders striking answer for their failure to respond to discovery demands, granting them a default judgment against defendants, and awarding them sanctions, costs, attorney fees, and other relief. (NYSCEF 72). By stipulation dated October 12, 2017, the parties agreed to adjourn the return date of the motion to December 6, (NYSCEF 79). The motion was submitted on December 6, 2017, and not scheduled for oral argument, as do not hold oral argument on discovery. motions. Rather, the motion was to be addressed on January 17, 2018, the next scheduled compliance conference, as is my practice relating to discovery motions. Earl' By motion dated January 3, 2018 (sequence three), defendants moved to compel Earl's ME; that motion was returnable on February 8, (NYSCEF 1 18). On January 17, 2018, the parties appeared for the scheduled compliance conference. counsel.refused to proceed with the conference because her motion to strike the answer (sequence two) was pending and she asserted a need for an immediate decision on it as the statute of limitations to bring in new parties was to expire on March 27, The conference was thus adjourned to January 31, 2018, at 2:15 pm, for a decision to be made on the / motion to strike by that date. The motion was not scheduled for oral argument. Again, my Part Rules do not provide for oral argument on discovery motions; all other motions are scheduled for Wednesdays mornings only. Thus, court reporters are ordinarily not present in the courtroom on. - Page 6 of 11 6 of of 47

17 NYSCEF FLED: DOC. NEW NO. 213 YORK ÖbTJN CLERK RECEVED NYSCEF: 05/07/2018 NYSCEF DOC. NO. 211 RECEVED NYSCEF: 05/03/2018 Wednesday afternoons as they are on Wednesday mornings. Noreover, pursuant to the soordered stipulation memorializing the January 17 compliance conference, it is the conference that was [" adjourned, not the motion. (NYSCEF 131 ["As motion seq. 002 is pending, and (plaintiff's counsel) represents that the S.OL is on March 27, 2018, and the issues in seq. 002 affect her ability to bring in new parties before the SOL expires, conf. is adjourned."]). Given plaintiffs' expressed urgency in obtaining a decision on their motion to strike (sequence two), by decision and order dated January 29, 2018, the motion was decided and the parties were directed to proceed with discovery at the next compliance conference, scheduled for January 31, The decision was entered on January 30, 2018, so that the parties would have it in advance of the conference the next day. When the parties appeared for the conference on January 31, they were shown a copy of the e-filed decision and order, at which time plaintiffs' counsel objected to it and alleged that she had assumed that the January 31 appearance was for oral argument on the motion and that no decision would be made until after oral argument. Despite advice from the court attorney that ( oral arguments are not held on discovery motions and that the conference, not the motion, had been adjourned to January 31 pursuant to the previous so-ordered stipulation, counsel persisted, maintaining that oral argument was required on the motion, notwithstanding the court attomey's additional advice that neither the CPLR nor any court rule mandates oral argument on a motion. Rather, the holding of argument is a matter within the court's discretion. (22 NYCRR 202.8[d] [motion papers deemed submitted as of return date and "the assigned judge, in his or her discretion or at the request of a party, thereafter may determine that any motion be orally argued and may fix a time for oral argument."]). Moreover, pursuant to the rule, a party requesting oral argument must set forth its request, as pertinent here, in its notice of motion, and even when all Page 7 of 11 7 of of 47

18 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 FXLED: NEW YORK COUNTY CLERK 05 03/ :11 PC -1ha-E m e14 u a NYSCEF DOC. NO. 211 RECEVED NYSCEF: Q5/03/2018 parties to a motion request oral argument, argument will not be granted if the court determines it F unnecessary. (fd.). Here, plaintiffs did not request oral argument in their notice of motion. counsel also asserts that improperly decided the motion relating to the ME (sequence three) before she filed her opposition. Given the apparent merit of motion,! and the initial erroneous belief that it was the motion that needed a prompt decision, granted it and then realized that it was not the decision that plaintiffs urgently needed. The decision was thus placed in the compliance conference folder pending receipt of plaintiffs' opposition. The court clerk, finding it in the folder before the conference that day, inadvertently advised the parties of it. As the decision had neither been filed nor entered, counsel's awareness of it is not significant. n any event, even after submission of plaintiffs' opposition, the motion remains meritorious; the opposition does not warrant a different result. (See supra,.). counsel characterizes as a "threat" advice that Earl's failure to appear for an ME may result in sanctions. t is standard, however, to issue a conditional order when it appears that a party has not complied with repeated orders. (See e.g., Arts4All, Dd. v Hancock, 54 AD3d 286 [1" [" Dept 2008] substantial deference should be accorded to the trial court's considerable discretion to compel compliance with discovery orders"], affd 12 NY3d 846 [2009]). To the extent that plaintiff refused to appear for the ME as set forth above (NYSCEF 127), the conditional order was not inappropriate. Plaintiffs otherwise contend that repeated failures to comply with discovery orders were apparently countenanced by me, which they assert sets a double standard for the parties. The pertinent sequence of events follows: n the November 2016 compliance conference order, theparties agreed to provide discovery responses by December 5, By letter dated December 6, 2016, defense counsel advised, without dispute, that theyservedtheir responses Page 8 of 11 8 of of 47

19 NYSCEF DOC. FLED: NEW NO. 213 's, o1, m b YORK COUNTY CLERK 05/ 03/ : 11 PM RECEVED NYSCEF: 05/07/2018 NYSCEF DOC. NO. 211 RECEVED NYSCEF: 05/03/2018 on December 6, The so-ordered stipulation entered into at the next compliance conference held on February 22, 2017, contains no indication that defendants failed to provide a response to discovery demands. nstead, defendants agreed to respond to a new set of discovery requests dated February 21, 2017, and to provide a bill of particulars on the affirmative defenses. Thus, while plaintiffs argued then and now that they did not move to strike until defendants had failed to comply with three court orders, the record reflects that it was not until the third compliance conference that there is any indication that defendant failed to file a written response. Thus, plaintiffs demonstrate an insufficient predicate for striking the answer. Consequently, when plaintiffs' motion to strike (sequence two) was submitted in! December 2016 and decided in January 2017, the requested relief was not warranted. There is a meaningful difference between no response to a demand and a response that a party deems incomplete or insufficient. The record reflects that defendants provided discovery responses, and plaintiffs' assertion that they are non-responsive was to be addressed at a compliance conference or by a motion to compel, which plaintiffs have now filed. While CPLR 3126 permits a court to issue an order striking pleadings, among other relief, upon a party's failure to obey an order of disclosure or willful failure to disclose information, the drastic remedy of striking a pleading is generally considered unwarranted absent a party first moving to compel compliance with discovery demands and/or a showing that the other party's failure to obey discovery orders was willful or contumacious. (See W&W Glass, LLC v 1113 York Ave. Realty Co. LLC, 83 AD3d 438 [1" Dept 2011] ["there appear to be no prior motions by plaintiff to compel disclosure, rendering any motion to strike the answer pursuant to CPLR 3126 premature in this case."] ; Double Fortune Prop. nvestors Corp. v Gordon, 55 AD3d 406 [15t Dept 2008] [as plaintiff responded to discovery requests, proper course was for defendant to move to compel further discovery rather Page 9 of 11 9 of of 47

20 NYSCEF FLED: DOC. NEW NO. 213 YORK RECEVED COUNTY CLERK NDEX NYSCEF: NO. 04:11 P / /07/2018 NYSCEF DOC. NO. 211 RECEVED NYSCEF: 55/03/2018 than moving to strike complaint] ; see also Pehzman v Dept. of Educ. of City of New York, 95 AD3d 625 [1" Dept 2012] [striking of answer is ultimate penalty that may be imposed only upon extreme conduct] ; Palmenta v Columbia Univ., 266 AD2d 90 [1" Dept 1999] [striking answer inappropriate absent clear showing that failure to comply was willful, contumacious, or in bad t faith, which moving party must affirmatively establish]; Commerce & ndus. Co. v Lib-Com, Ltd, 266 AD2d 142 [1" Dept 1999] [striking of pleading "not a sanction to be routinely imposed ' whenever a party fails to comply with any item of discovery"] [emphasis in original]). n Barber v Ford Motor Co., the Appellate Division, First Department observed that plaintiff's direct resort to a motion for sanctions was not the proper procedure to address purported deficiencies in [defendant's] responses to plaintiff's discovery demands and/or the [ ] preliminary conference order. The proper course would have been to proceed with the ordered depositions, determine at that time whether or not other documents were available, request their production pursuant to CPLR 3120, and make a good faith effort to bring a non-judicial resolution of any remaining discovery disputes. f, at that juncture, the parties had been unable to resolve their differences, a motion pursuant to CPLR 3124 to compel further discovery would have been the appropriate means of proceeding. (250 AD2d 552 [1" Dept 1998] [internal citations removed]). V. CONCLUSON Based on the procedural history of this action and the applicable caselaw, my decisions on plaintiffs' motion to strike and on motion to compel an ME comport with the pertinent rules and law. t nonetheless bears observing that this action presents an anomaly in that most attorneys conduct discovery without the necessity of any court intervention. Here, by contrast, counsels continually engage in disputes which serve only to extend this stage of the litigation. Accordingly, it is hereby Page 10 of of ll 20 of 47

21 NYSCEF DOC. FLED: NEW NO. 213 RECEVED YORK COUNTY CLERK :11 P NDEX NYSCEF: NO / /07/2018 NYSCEF DOC. NO. 211 RECEVED NY SCEF: 06/03/2018 ORDERED, that motion to compel is granted, and plaintiff Earl Lind, Jr., is directed to appear for an ME at the office of the physician designated by defendants within 30 days of the date of this order; and it is further ORDERED, that plaintiffs' cross motion for a protective order is denied. 5/1/2018 f DATE BAR R JAFFE, J.S.C. H N. RBARA JAPP CHECK ONE: CASE DSPOSED. X NON-FNAL DSPOSTON GRANTED DENED X GRANTED N PART ' OTHER APPLiCATiON: SETTLE ORDER SUBMT ORDER. CHECK F APPROPRATE: DO NOT POST FDUCARY APPOtNTMENT REFERENCE t Page 11 of of of 47

22 a A V ~ «aj ~'~ 4Vklab VVV«J 4 %J~QSQA VV V 4 RV4 V V J ~ 4V l NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 NYSCEF DOC. NO. 212 RECEVED NYSCEF: 05/04/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EARL LND JR. and DOROTHY LND, ORDER WTH Plaintiff NOTCE OF ENTRY -against- ndex No /2016 TSHMAN CONSTRUCTON CORPORATON OF NEW YORK and TSHMAN CONSTRUCTON Motion Seq. 3 CORPORATON, Defendants. COUNSEL: PLEASE TAKE NOTCE that annexed hereto is a true copy of the Decision and Order of the Supreme Court of the State of New York, Honorable Barbara Jaffe, dated May 1, 2018, and duly entered with the New York County Clerk of the Court on or about May 3, Dated: New York, New York May 4, 2018 SEGAL McCAMBRDGE SNGER & MAHONEY, LTD. Attorneys for Defendants TSHMAN CONSTRUCTON CORPORATON OF NEW YORK and TSHMAN CONSTRUCTON CORPO TON, gy,! Brian E. Bergin, Esq. 850 Third Avenue, Suite 1100 New York, New York (212) TO: Robert Schacht, Esq. ROBERT SCHACHT, P.C. Attorneys for Plaintiffs 1001 Clove Road Staten sland, New York (718) FXHBlT 3 22 of 47

23 4 &~V ~ 41~A 4 VS\a't WVal 4 k %@area'o' V 4 V 3 a V a V V 4 ~ 9 V NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 NYSCEF DOC. NO. 212 RECEVED NYSCEF: 05/04/2018 Bemadette Panzella, Esq. Bemadette Panzella, P.C. Attorneys for Plaintiffs 114 East 13th Street, Studio 5A New York, New York (212) of 47

24 4 ~ ~ J i'ii. NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 NY E, N REC C 0 2 )18 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. BARBARA JAF FE PART 12 Justice ,_._ X EARL LND, JR. and DOROTHY LND; NDEX NO /2016 Plaintiffs, MOTON DATE - v - MOTON SEQ. NO. 3 TSHMAN CONSTRUCTON CORPORATON OF DECSON AND ORDER NEW YORK, TSHMAN CONSTRUCTON CORPORATON, Defendants. - â â -X By notice of motion, defendants move pursuant to CPLR 3124 for an order compelling plaintiff to appear for an independent medical examination (ME). Plaintiffs oppose and, by notice of cross motion move for a protective order relating to the ME. Defendants oppose the cross motion.. PERTNENT BACKGROUND By notice dated October 24, 2016, plaintiffs demanded that defendants conduct a physical examination of plaintiff Earl Lind, Jr., at plaintiffs' counsel's office on Staten sland at 2pm on January 25, (NYSCEF 139). On November 16, 2016, the parties appeared for a preliminary conference and agreed, as pertinent here, that Earl's ME would be held within 45 days after his completed examination Page 1 of 11 1 nf ll 24 of 47

25 4% J.l'i)l' h '4V ~.J'1 l 01 / â VJ 'V NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 NYS ) gjdo GC NQ REC Ç V ŸS C~'y 0 Ó2( 18 before trial (EBT), which was scheduled to be held on or before February 6, The parties' stipulation was so-ordered. (NYSCEF 25). The first compliance conference was held on February 22, 2017, at which a so-ordered stipulation was entered into whereby it was agreed that Earl's EBT would be held on or before May 6, 2017, and the ME within 45 days thereafter. (NYSCEF 31). At the next compliance conference and by so-ordered stipulation dated July 5, 2017, Earl's EBT was rescheduled for on or before September 13, 2017, and the ME for within 45 days thereafter. (NYSCEF 36). By letter dated October 31, 2017, defendants notified plaintiffs that they had designated a 1 physician to perform Earl's ME on December 19, 201.7, at the physician's office in Uniondale, New York. (NYSCEF 124). n response, by letter dated November plaintiffs' 13, 2017, counsel objected to the location of the ME "as it is in Nassau County and it will be too painful of a ride ' for my client to travel that far from his home and this would involve he be [sic) in-a car for more than 3 hours." She thus advised that defendants should contact her to make different arrangements, and that "[w]e have no problem attending the physical at your office or a Manhattan, Brooklyn location." (NYSCEF 80). The parties were unable to resolve the issue. (NYSCEF 126, 127). MOTON TO COMPEL Pursuant to 22 NYCRR (a), at any time after joinder of issue and service of a bill of particulars, the party to be examined may serve on all other parties a notice fixing the time and place of the examination. Unless otherwise stipulated, the examination must be held not less than 30 nor more than 60 days after service of the notice, and any party may move to modify or vacate the notice within 10 days of its receipt. Page 2 of 11 of of 47

26 ~H ' 4 Jl'VLlZ,A XV. J3% / 5 J./ 4VJ b NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 NY yl O OC OlfO.21Ê11 REC Y%c& C 8') Of d / 2018 Here, plaintiffs' notice was dated and served on October 24, 2016, and purported to schedule the examination.for January 25, 2017, more than 60 days from the date of the notice. Having failed to comply with the requirement that the examination be held no more than 60 days from receipt of the notice, the notice is defective on its face. Defendants did not waive their right to object to plaintiffs' notice as 22 NYCRR (a) does not require that an objection be made; rather, it provides that a party "rnay" object. (See Resnick v Scher, 198 AD2d 218, 218 [2d Dept 1993] [defendant's failure to object to notice within 10-day period did not warrant denial of motion to vacate notice; rules set forth in 22 NYCRR binding "except where the court otherwise directs"] ; see also Leugemors v Slawinski, 255 AD2d 913 [45 Dept 1998] [court had discretion to grant motion to compel examination.despite argument that objection waived by failing to conduct examination within time period in examination notice; delay in seeking examination minimal and discovery incomplete]). n any event, plaintiffs apparently abandoned the October 2016 notice and their preferred location of Staten sland for the ME, having failed, at several succeeding compliance conferences, to mention either (NYSCEF 31, 36) and, after receiving designation letter, by objecting solely on the ground that the location proposed by defendants was inconvenient to Earl, and by proposing other options, eg, having the ME at defense counsel's office or anywhere in Manhattan or Brooklyn. demand was also rendered academic by the so-ordered compliance conference stipulations scheduling and rescheduling the ME. (See Henderson-Jones v City of New York, 104 AD3d 411 [1" Dept.2013] [while plaintiff argued that failure to specify time for ME in ME notice in violation of CPLR 3121(a) and 22 NYCRR (a) constituted waiver Page 3 of 11 3 of of 47

27 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 N. Qc. RECElW ffil CW:SW703 a /; 018 of ME, ME was directed in so-ordered stipulation and thereby directed by court order, thus removing issue of notice]). By contrast, although defendants did not object to the October 2016 demand, they did not waive their right to an ME, as the parties agreed to future dates for it pursuant to the November. 2016, February 2017, and July 2017 so-ordered stipulations. And, while plaintiffs had purported to schedule the ME on January 25, 2017, having agreed on November 6, 2016 that the ME would be conducted within 45 days after Earl's scheduled EBT on February 7, 2017, the January 25 date was effectively superseded, and at no time in the last year did plaintiffs cite to or rely on. the October 2016 notice whenever the issue of Earl's ME was raised. Rather, it was not until defendants filed this motion that plaintiffs have sought to resurrect the superseded October 2016 notice. Even if plaintiffs had not abandoned their right to choose the location of the ME, a court may vacate a notice providing for an examination to be held at an attorney's office, rather than a medical office, as it is a "common sense notion that medical examinations are more properly conducted in medical offices than in the offices of an attorney." (Resnick, 198 AD2d at ). Moreover, the defendant is entitled to retain a physician of its choosing to examine the plaintiff,! as "the defense must be able to retain a doctor in whom they have confidence to not only perform the examination, but to be in a position to testify as well." (Chen v Zhi, 109 AD3d 815 [2d Dept 2013), quoting Chong v New York Downtown Hosp., 2012 WL , 2012 NY Slip Op 32877[U] [Sup Ct, New York County]). "The designation of the doctor who will conduct the independent medical examination of the plaintiff shall not be limited or circumscribed by the plaintiff." (d at 817).! Page 4 of 11 4 of of 47

28 44ASWJJ NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 NY SWBCDBCDO(ND NC2.12'11 " RECE E D NY SCF F: 05/04/20 8 RECEVE D NYSCEF: 05/O3/2018 Defendants thus establish their entitlement to an order compelling Earl to appear for an ME at the office of their designated physician. Plaintiffs cite no authority to support their argument that because the action is pending in New York County, the ME may only be conducted in this county. Nor have they demonstrated that having the ME performed on Long sland is an undue hardship for Earl, absent a physician's note. The submitted correspondence between the parties clearly reflects that that they were unable to agree on the location for the ME despite several attempts. (See e.g., letter dated Nov. 13, 2017, from plaintiff's counsel to defense counsel [rejecting location of ME] [NYSCEF 125]; letter dated Nov. 17, 2017, from defense counsel to plaintiffs' counsel ["(t)his fetter shall serve as a good-faith effort to address your () response before a motion to compel your client's appearance at his (ME)... is necessary] [NYSCEF 126]; letter dated Nov. 28, 2017, from plaintiffs' counsel ["(i)n response to your... letters (sic) request for discovery... and your response to plaintiff's rejection of the location of plaintif s defense physical in Nassau County, be advised that plaintif s position has not changed."] [NYSCEF 127]). Consequently, an affirmation of good faith is not required. (See Boulieu v Ardsley Assocs. L.P., 84 AD3d 666 [1" Dept 201l] [failure to provide affirmation of good faith excusable as any effort to resolve dispute without judicial intervention would have been futile]).. CROSS MOTON FOR PROTECTVE ORDER Based on the above, plaintiffs' cross motion for a protective order is denied. However, address certain allegations set forth therein. My Part Rules, available on the Court's website at Rules.pdf, strongly discourage motions relating to discovery, and provide that "[iff a discovery dispute arises after the issuance of a preliminary or compliance conference order, it must be directed to the Part Clerk who will Page 5 of 11 5 of 28 of 47

29 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 NY oc.n CSE/o9NdW² 1 REC C 018 promptly schedule a new conference or advance the date of a previously-scheduled conference." Experience shows that the resolution of discovery issues is often best accomplished through discussion among the attorneys with or without the assistance of a court attorney, rather than by motion. The court record reflects the following: By motion dated October 9, 2017 (sequence two), plaintiffs moved for orders striking.. answer for their failure to respond to discovery demands, granting them a default judgment against defendants, and awarding them sanctions, costs, attorney fees, and other relief. (NYSCEF 72). By stipulation dated October 12, 2017, the parties agreed to adjourn the return date of the motion to December 6, (NYSCEF 79). The motion was submitted on December t 6, 2017, and not scheduled for oral argument, as 1 do not hold oral argument on discovery motions. Rather, the motion was to be addressed on January 17, 2018, the next scheduled compliance conference, as is my practice relating to discovery motions, Earl' By motion dated January 3, 2018 (sequence three), defendants moved to compel Earl's ME; that motion was returnable on February 8, (NYSCEF 1 18). On January 17, 2018, the parties appeared for the scheduled compliance conference. counsel.refused to proceed with the conference because her motion to strike the answer (sequence two) was pending and she asserted a need for an immediate decision on it as the statute of limitations to bring in new parties was to expire on March 27, The conference was thus adjourned to January 31, 2018, at 2:15 pm, for a decision to be made on the motion to strike by that date. The motion was not scheduled for oral argument. Again, my Part Rules do not provide for oral argument on discovery motions; all other motions are scheduled for Wednesdays mornings only. Thus, court reporters are ordinarily not present in the courtroom on Page 6 of 11 6 of of 47

30 NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 NY N O..1 REC CMSC ) /2 018 Wednesday afternoons as they are on Wednesday mornings. Moreover, pursuant to the soordered stipulation memorializing the January 17 compliance conference, it is the conference that was [" adjourned, not the motion. (NYSCEF 131 ["As motion seq. 002 is pending, and (plaintiff's counsel) represents that the S.OL is on March 27, 2018, and the issues in seq. 002 affect her ability to bring-in new parties before the SOL expires, conf. is adjourned."]). Given plaintiffs' expressed urgency in obtaining a decision on their motion to strike (sequence two), by decision and order dated January 29, 2018, the motion was decided and the parties were directed to proceed with discovery at the next compliance conference, scheduled for January 31, The decision was entered on January 30, 2013, so that the parties would have it in advance of the conference the next day. When the parties appeared for the conference on January 31, they were shown a copy of the e-filed decision and order, at which time plaintiffs' counsel objected to it and alleged that she had assumed that the January 31 appearance was for oral argument on the motion and that no decision would be made until after oral argument. Despite advice from the court attorney that! oral arguments are not held on discovery motions and that the conference, not the motion, had been adjourned to January 31 pursuant to the previous so-ordered stipulation, counsel persisted, that oral argument was required on the motion, notwithstanding the court attorney's additional advice that neither the CPLR nor any court rule mandates oral argument on a motion. Rather, the holding of argument is a matter within the court's discretion. (22 NYCRR 202.8[d] [motion papers deemed submitted as of return date and "the assigned judge, in his or her discretion or at the request of a party, thereafter may determine that any motion be orally argued and may fix a time for oral argument."]). Moreover, pursuant to the rule, a party requesting oral argument must set forth its request, as pertinent here, in its notice of motion, and even when all Page 7 of 11 7 of of 47

31 let J.l'Llkn BV 141 r V J/ v xv NYSCEF DOC. NO. 213 RECEVED NYSCEF: 05/07/2018 c. c. REC Of / /2018 parties to a motion request oral argument, argument will not be granted if the court determines it.' unnecessary. (d.). Here, plaintiffs did not request oral argument in their notice of motion. counsel also asserts that improperly decided the motion relating to the ME (sequence three) before she filed her opposition. Given the apparent merit of motion, and the initial erroneous belief that it was the motion that needed a prompt decision, granted it and then realized that it was not the decision that plaintiffs urgently needed. The decision was thus placed in the compliance conference folder pending receipt of plaintiffs' opposition. The 1 court clerk, finding it in the folder before the conference that day, inadvertently advised the parties of it. As the decision had neither been filed nor entered, counsel's awareness of it is not significant. n any event, even after submission of plaintiffs' opposition, the motion remains meritorious; the opposition does not warrant a different result. (See supra,.). counsel characterizes as a "threat" advice that Earl's failure to appear for an ME may result in sanctions. t is standard, however, to issue a conditional order when it appears that a party has not complied with repeated orders. (See e.g., Arts4All, Ltd. v Hancock, 54 AD3d 286 [1" [" Dept 2008] substantial deference should be accorded to the trial court's considerable discretion to compel compliance with discovery orders"], affd 12 NY3d 846 [2009]). To the extent that plaintiff refused to appear for the ME as set forth above (NYSCEF 127), the conditional order was not inappropriate. Plaintiffs otherwise contend that repeated failures to comply with discovery orders were apparently countenanced by me, which they assert sets a double standard for the parties. The pertinent sequence of events follows: n the November 2016 compliance conference order, the parties agreed to provide discovery responses by December 5, 2016, By letter dated December 16, 2016, defense counsel advised, without dispute, that they served their responses Page 8 of 8 of ll 31 of 47