Hamlin v. Mensch

205 A.D.2d 452, 613 N.Y.S.2d 891

Opinion

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about December 15, 1993, which denied defendant’s motion to strike plaintiff’s note of issue and to compel a physical examination of plaintiff, unanimously affirmed, without costs.

The IAS Court did not abuse its discretion in refusing to compel a physical examination of plaintiff where defendant failed to comply with 22 NYCRR 202.17 by objecting or otherwise timely responding to plaintiff’s notice of availability for physical examination, which was served together with various medical and hospital reports and authorizations that defendant had demanded (see, Becker v Chmura, 139 AD2d 826), and did not seek such physical examination until after plaintiff had filed a note of issue, approximately a year and a half after the notice of availability (compare, De Chiaro v Rendell, 95 AD2d 792). Concur—Ellerin, J. P., Kupferman, Rubin and Nardelli, JJ.