Marotta v. Rood

65 A.D.2d 807, 410 N.Y.S.2d 368, 1978 N.Y. App. Div. LEXIS 13691

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1978
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Suffolk County, dated July 12, 1978, which granted defendants’ motion to direct her to submit to a physical examination. Order affirmed, without costs or disbursements, on condition that defense counsel pay plaintiff the sum of $250 within 20 days after service upon defendants of a copy of the order to be made hereon, together with notice of entry thereof; in the event such condition is not complied with, order reversed, with $50 costs and disbursements, and motion denied. The examination shall proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by defendants after payment of the $250, or at such other time and place as the parties may agree. In the interest of justice, defendants should be permitted to conduct a physical examination of plaintiff. No prejudice to plaintiff has been shown. However, because defendants’ failure to conduct an examination heretofore was caused by the apparent neglect of their counsel, which was not adequately explained, this affirmance is conditioned on the payment of $250 (see Gaffney v Salenger, 40 AD2d 849). Latham, J. P., Suozzi, Gulotta, Shapiro and Cohalan, JJ., concur.