Jenkins v. 312 West 121st Street Inc.

30 A.D.2d 937, 293 N.Y.S.2d 875, 1968 N.Y. App. Div. LEXIS 3248

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1968
• Status: Published

Opinion

Order entered April 1, 1968 unanimously modified on the law and the facts, and in the exercise of discretion, to the extent that a physical examination of the plaintiff Lucinda Jenkins be permitted and a full examination with respect to all injuries and special damages flowing therefrom be allowed, and except as so modified affirmed, without costs and without disbursements. In view of the wide disparity between the original bill and the later amended bill, a full and complete examination as to the nature and extent of the. plaintiff’s injury not restricted to the additional matters set forth in plaintiff’s amended and supplemental bill of particulars, filed on the eve of trial, is warranted. However, the defendant’s lack of vigilance precludes an examination as to the facts and circumstances of the accident. The defendant abstained from pressing for such an examination on two prior opportunities, the filing of the original bill April 6, 1965 and the filing of the readiness statement on July 8,1965. Consonant with our previously expressed views, defendant cannot now so examine. (Pioneer Jewelry Corp. v. All Continent Corp., 24 A D 2d 436; Woznicki v. Lynn Terrace Apts., 22 A D 2d 883; Liberty Dressing Co. v. Foster Sportswear Co., 14 A D 2d 196.) Concur — Botein, P. J., Stevens,Eager, Tilzer and McGivern, JJ.