In Bermel v. Dagostino , James Bermel sued Jason Dagostino for injuries suffered in an auto accident.
Dagostino made a number of requests for Bermel's medical records in order to determine whether the plaintiff suffered from a preexisting medical condition. Bermel's failure or refusal to respond prevented Dagostino from scheduling independent medical examinations (or IMEs) because the records were necessary to establish whether the accident had caused Bermel's injuries. Once Dagostino finally received the records he tried to schedule the IMEs, but Bermel again refused to cooperate.
When Dagostino asked the New York County Supreme Court to force Bermel to appear for the IMEs, that request was denied (probably because the applicable discovery deadlines had passed).
On appeal, the Appellate Division, First Department, reversed, finding that under these particular circumstances, Dagostino demonstrated "unusual and unanticipated circumstances" which warranted compelling Bermel to appear for the IMEs.
With that, Dagostino handed Bermel the bag.
To download a copy of the Appellate Division's decision, please use this link: Bermel v. Dagostino