Baig v. City of New York

282 A.D.2d 386, 723 N.Y.S.2d 645, 2001 N.Y. App. Div. LEXIS 4083

Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about February 3, 2000, which, to the extent appealed from, denied so much of third-party defendant’s motion as sought to strike plaintiffs’ note of issue on the ground that plaintiff failed to submit to a physical examination, and order, same court and Justice, entered June 8, 2000, which, to the extent appealable, denied third-party defendant’s motion for renewal of its motion for the relief denied in the February 3, 2000 order, unanimously affirmed, without costs.

At this very late stage in the litigation and under all the other relevant circumstances, the motion court properly exercised its discretion in declining to order the physical examination sought by third-party defendant (see, Hamlin v Mensch, 205 AD2d 452, 453). In view of the propriety of the court’s determination with respect to ordering the sought physical examination, plaintiffs’ note of issue was properly left undisturbed (see, Attie v City of New York, 221 AD2d 274). Third-party defendant’s motion for renewal was properly denied in light of its failure to explain why the purportedly new material was not presented on the original motion (see, Wolkstein v Morgenstern, 261 AD2d 170). Concur — Rosenberger, J. P., Nardelli, Andrias and Saxe, JJ.