Kashmer v. City of New York

23 A.D.3d 293, 804 N.Y.S.2d 241

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 2005
• Status: Published

Opinion

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered July 8, 2005, which, inter alia, denied the motion of defendant Metropolitan 810 7th Ave. LLC (Metropolitan) to vacate an order, entered December 15, 2004, on default, striking its answer and setting the action down for an assessment of damages, and granted plaintiffs cross motion to preclude defendant from conducting a physical examination of plaintiff, unanimously affirmed, without costs.

Defendant Metropolitan’s motion was properly denied since it failed to present a reasonable excuse for its default. The court also properly exercised its discretion in precluding defendant from conducting an independent medical examination of plaintiff. Defendant waived its right to the examination by failing without excuse to comply with court-imposed discovery deadlines; it made no showing that its noncompliance was attributable to any unusual or unanticipated circumstance (see Quintanna v Rogers, 306 AD2d 167 [2003]). Concur—Tom, J.P., Andrias, Friedman, Sullivan and Malone, JJ.