Dingee v. Dominick

85 A.D.2d 593, 444 N.Y.S.2d 712, 1981 N.Y. App. Div. LEXIS 16396

Opinion

In a negligence action to recover damages for personal injuries, etc., defendants appeal from so much of an order of the Supreme Court, Dutchess County (Jiudice, J.), dated December 17,1980, as, upon reargument, adhered to the original determination denying their motion to compel the injured plaintiff to appear for a physical examination. Order affirmed insofar as appealed from, with $50 costs and disbursements. Having failed to properly respond to two notices of availability for physical examination, served by plaintiffs in January and July, 1979, pursuant to 22 NYCRR 672.1, or to request such examination in October, 1979, when plaintiffs served a supplemental bill of particulars mentioning additional injuries, and instead seeking to examine the injured plaintiff only after plaintiffs served their note of issue and statement of readiness in July, 1980, defendants have waived their right to a physical examination (see 22 NYCRR 672.1; 672.7; Delgado v Fogle, 32 AD2d 85; Juett v Paesani, 19 AD2d 726). Damiani, J. P., Titone, Mangano and Gibbons, JJ., concur.