In this auto accident litigation, the client claimed that he did not have to appear for deposition because he was temporarily out of state. It should be noted that any party to a lawsuit may require another party to be deposed to discover facts about the case. (See
The client also refused to submit to an independent medical examination (IME) requested by the defendant for the same reason. The defendant then moved to dismiss the complaint because of the plaintiff’s failure to attend his deposition and to submit to the IME, and because the plaintiff had failed to provide written discovery. The court granted the motion to dismiss without prejudice.
However, the plaintiff persisted in failing to provide discovery and the defendant moved to have the case dismissed with prejudice, meaning that it could not be restored. The Appellate Division noted that the defendant’s attorney did communicate with the plaintiff in order to try to resolve the deficiencies, and waited the required 60 day period before filing the second motion to dismiss.
The Appellate Division upheld the trial court dismissal, finding that the plaintiff’s temporary relocation out of state was not an exceptional circumstance justifying the plaintiff’s refusal to attend his deposition or submit to an IME. It is critical that an accident victim take her attorney’s advice and cooperate with the process so that she can ultimately be compensated for her injuries.