Deeley v. Leo's Den, Inc.

126 A.D.2d 698, 511 N.Y.S.2d 301, 1987 N.Y. App. Div. LEXIS 41841

Opinion

In an action, inter alia, to recover damages for assault, the defendant John Giordano appeals from an order of the Supreme Court, Nassau County (Kelly, J.), dated September 17, 1985, which denied his motion to compel the plaintiff to submit to a physical examination at the office of the appellant’s doctor.

Ordered that the order is reversed, with costs, and the motion is granted to the extent that plaintiff is directed to submit to a physical examination at a time and place, and by a physician, to be designated by the appellant in a written notice of not less than 10 days, or at such other time and place as the parties may agree.

In light of the reasonable excuse offered by the appellant for failing to timely move to vacate or modify the plaintiffs notice for physical examination, i.e., the undisputed basis for conducting said examination at the office of the appellant’s designated doctor because of the need for nontransportable instruments, the general diligence exercised by the appellant in asserting his position, and the lack of prejudice to the plaintiff, the examination shall proceed as indicated (see, De Chiaro v Rendell, 95 AD2d 792). Mollen, P. J., Bracken, Lawrence, Kooper and Sullivan, JJ., concur.