Opinion
May 25, 1983
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Callahan, J.P., Denman, Boomer, Green and Schnepp, JJ.
Order unanimously affirmed, with costs. Memorandum: Defendant's motion to compel plaintiff and her newborn child to submit to a blood-grouping test was properly denied. Paternity was not in issue inasmuch as defendant's allegation of adultery had been dismissed (see CPLR 3101, subd [a]). Defendant's motion to amend his pleadings to reassert the adultery claim, brought one day prior to jury selection, was also properly denied. The order dismissing that claim provided defendant with 20 days to amend his answer, and plaintiff's counsel stipulated to a further extension. By his failure to amend, defendant waived that right. If he lacked sufficient evidence on which to amend within the period provided, he should have sought an extension to permit additional disclosure or entered into a written stipulation with counsel (CPLR 2104; see Eaton v Equitable Life. Assur. Soc. of U.S., 56 N.Y.2d 900, 903). "Each party is entitled to expect the other to observe time requirements during the course of litigation, and both are equally subject to prejudice from failure to observe such requirements" ( Eaton v Equitable Life. Assur. Soc. of U.S., supra, p 903).