Jacobs v. Peress

23 A.D.2d 483, 255 N.Y.S.2d 492, 1965 N.Y. App. Div. LEXIS 5020

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1965
• Status: Published

Opinion

Order, entered on October 29, 1964, granting a physical examination of the female plaintiff, unanimously reversed on the law and the facts, with $30 costs and disbursements to appellants, and the motion denied. The examination was not sought until 14 months after plaintiffs had served and filed a statement of readiness and on the eve of the case being added to the Ready Day Calendar. Although Special Term specifically found that the belated application was contrary to the rules of the court governing procedures with respect to a statement of readiness, and also found that no unusual and unanticipated conditions had developed since the filing of the statement of readiness, defendant’s motion was nonetheless granted on the untenable basis that the examination should be allowed in the interest of having the issue of plaintiff’s physical condition completely presented to the triers of the facts. Since Price v. Brody (7 A D 2d 204), it has been made unmistakably clear that the statement of readiness rule will not be departed from in the absence of a showing of special, unusual or extraordinary circumstances warranting the exercise of the court’s discretion. Since no such showing was made, or attempted, in this case, it was an improvident exercise of discretion to grant defendant’s motion. Concur — Botein, P. J., Valente, McNally, Eager and Staley, JJ.