Quintanna v. Rogers

306 A.D.2d 167, 760 N.Y.S.2d 328, 2003 N.Y. App. Div. LEXIS 7231

Opinion

—Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered June 17, 2002, which, to the extent appealed from as limited by appellants and third-party plaintiffs’ brief, denied their motion to strike plaintiffs’ note of issue, and deemed appellants to have waived their right to conduct physical examinations of plaintiffs, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered February 25, 2003, which, to the extent appealed from, denied appellants’ motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable order.

The court properly exercised its discretion in denying appellants’ motion to strike plaintiffs’ note of issue and in determining that appellants had waived their right to a physical examination of plaintiffs by failing to comply with the deadlines set in the court’s prior order (see Mateo v City of New York, 282 AD2d 313 [2001]; Mayo v Lincoln Triangle Assoc., 248 AD2d 362 [1998]). Plaintiffs’ certificate of readiness contains no factual errors, since the court’s prior order provided for automatic waiver or preclusion for failure to comply with its directives, plaintiffs were deposed timely according to the prior order, and appellants have failed to allege any unusual or unanticipated circumstances which caused their noncompliance.

We have considered and rejected appellants’ remaining arguments. Concur — Nardelli, J.P., Tom, Rosenberger and Gonzalez, JJ.