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Cabrera v Abaev

Supreme Court of New York, Appellate Division, First Department

 May 23, 2017, Decided ; May 23, 2017, Entered

4088N, 4087


 [**207]  [*588] Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about January 9, 2017, which, to the extent appealed from as limited by the briefs, granted defendants-respondents' post-note of issue motion to compel plaintiff to appear for independent medical examinations, unanimously affirmed, without costs.

 [**208] "Trial courts are authorized, as a matter of discretion, to permit post-note of issue discovery without vacating the note of issue, so long as neither party will be prejudiced" (Cuprill v Citywide Towing & Auto Repair Servs., 149 AD3d 442, 443, 49 NYS3d 624, 2017 NY Slip Op 02729 [1st Dept 2017]). We perceive no prejudice here, as the matter remains on the trial calendar (see Suarez v Shapiro Family  [*589]  Realty Assoc., LLC, 149 AD3d 526, 53 NYS3d 23, 2017 NY Slip Op 02914 [1st Dept 2017]; see e.g. Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 168 AD2d 376, 376-377, 562 NYS2d 694 [1st Dept 1990]). Moreover, the court providently exercised its discretion in directing plaintiff to appear for the medical examinations, given defendants' short delay in designating the physicians (see Henderson-Jones v City of New York, 104 AD3d 411, 959 NYS2d 917 [1st Dept 2013]). Concur—Friedman, J.P., Moskowitz, Feinman, Gische and Kahn, JJ.

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150 A.D.3d 588 *; 55 N.Y.S.3d 207 **; 2017 N.Y. App. Div. LEXIS 4014 ***; 2017 NY Slip Op 04084 ****; 2017 WL 2231068

 [****1]  Omadil Cabrera, Appellant, v Yakov Abaev, Defendant, and Dennis Pantoja et al., Respondents.


medical examination, post-note