Law v. City of New York

250 A.D.2d 540, 672 N.Y.S.2d 704, 1998 N.Y. App. Div. LEXIS 5943

Opinion

—Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered September 15, 1997, which granted defendant’s motion to compel plaintiffs to submit to physical examinations, unanimously affirmed, without costs.

Although defendant waived its right to conduct physical examinations of plaintiffs by failing to arrange for such in accordance with the preliminary conference order, and again by failing to move to strike the case from the trial calendar within 20 days of plaintiffs’ filing of a note of issue, we decline to disturb the motion court’s exercise of discretion, where plaintiffs misrepresented that physical examinations had been completed in their certificate of readiness, and the conducting of the requested physical examinations will not delay commencement of the trial (see, Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 168 AD2d 376). Concur — Milonas, J. P., Nardelli, Mazzarelli and Andrias, JJ.