Cohen v. Finkelstein

66 A.D.2d 831, 411 N.Y.S.2d 410, 1978 N.Y. App. Div. LEXIS 14165

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 1978
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Kings County, dated February 24, 1978, which, inter alia, denied plaintiff’s motion for a protective order and granted defendant’s cross motion for an examination before trial. Order affirmed, without costs or disbursements, on condition that the defendant pay the sum of $250 to the plaintiff within 20 days after service upon plaintiff of a copy of the order made hereon, together with notice of entry thereof; in the event such condition is not complied with, order reversed, with $50 costs and disbursements, and plaintiff's motion granted and defendant’s cross motion denied. The examination before trial shall proceed at such time and place as shall be fixed in a written notice of not less than 10 days to be given by the defendant, after the payment of the $250, or at such other time and place as the parties may agree. In the peculiar circumstances of this case (a substitution of defense counsel coupled with the plaintiff voluntarily submitting to three physical examinations subsequent to the filing of the statement of readiness), it was not an abuse of discretion for Special Term to have allowed the tardy application for an examination before trial. By imposing a sanction in this case we serve notice that the procedural rules of our court and the CPLR may not be disregarded with impunity. Hopkins, J. P., Damiani, Rabin and Shapiro, JJ., concur.