Gaffney v. Salenger

40 A.D.2d 849, 337 N.Y.S.2d 832, 1972 N.Y. App. Div. LEXIS 3365

Opinion

In a negligence action to recover damages for personal injuries sustained by the infant plaintiff and medical expenses, etc., incurred by her mother, defendants appeal from an order of the Supreme Court, Queens County, dated September 8, 1971, which denied their- motion, inter alia, to vacate plaintiffs’ statement of readiness and directed that the statement of readiness remain on file and that the ease remain on the trial calendar. Order modified by adding thereto a provision granting defendants a physical examination of the infant plaintiff, upon 10 days’ written notice by defendants. As so modified, order affirmed, with $10 costs and disbursements to plaintiffs. This modification is made on condition that defendants pay plaintiff said $10 costs and disbursements plus an additional amount of $250 costs. In the interests of justice, we hold that defendants should now have a physical examination of the infant plaintiff. However, because the lack of such physical examination was caused solely by defendants’ neglect to comply with section 672.1 of the rules of this court (22 NYCRR 672.1) when heretofore served with plaintiffs’ notice of availability for physical examination (Delgado v. Fogle, 32 A D 2d 85), we condition the modification herein on the payment of the costs above mentioned. Rabin, P. J., Munder, Latham, Shapiro and Christ, JJ., concur.