Carrano v. Mistratta

91 A.D.2d 1056, 458 N.Y.S.2d 895, 1983 N.Y. App. Div. LEXIS 16388

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1983
• Status: Published

Opinion

— In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Kings County (Vaccaro, J.), dated April 26,1982, which denied their motion to direct plaintiff William Carrano to submit to physical examinations. Order reversed, without costs or disbursements, and motion granted on condition that defense counsel pay plaintiffs $1,000 by check payable to the order of plaintiffs personally within 20 days after service upon defense counsel of a copy of the order to be made hereon, with notice of entry; in the event such condition is not complied with, order affirmed, with $50 costs and disbursements. The examinations shall proceed at times and places to be fixed in a written notice of not less than 10 days, to be given by defendants after payment of the $1,000, or such times and places as the parties may agree. In the interest of justice, and in the absence of prejudice to plaintiffs, the motion has been conditionally granted to allow defendants to conduct physical examinations. The granting of the motion has been made conditional, in light of the unexcused neglect of defendants’ counsel to proceed with the matter for almost four months beyond the date fixed by Special Term for the conduct of physical examinations (see Marotta v Rood, 65 AD2d 807). Damiani, J. P., Lazer, Mangano and Thompson, JJ., concur.