Opinion
June 17, 1968
In a medical malpractice action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Queens County, dated February 5, 1968, which granted defendant Rosenow's motion pursuant to CPLR 3121 for an order directing plaintiff to submit to a physical examination. Order affirmed, without costs. The examination shall proceed at the place directed in the order under review at a time specified in a written notice of not less than 10 days, to be given by defendant Rosenow, or at such other time and place as the parties may stipulate. The introductory paragraph in part 4 of the Rules of the Appellate Division, Second Department, which purports to preclude physical examinations and the exchange of medical reports in "actions for medical or dental malpractice", is superseded by CPLR 3121, which does not exclude such actions from the scope of its application (CPLR 101; De Castro v. City of New York, 54 Misc.2d 1007; Mackey v. Holy Family Hosp., 52 Misc.2d 770; Fiore v. Bay Ridge Sanitorium, 48 Misc.2d 318). Our holding in Griffin v. Jewish Hosp. of Brooklyn ( 20 A.D.2d 563) is not controlling since that case involved an appeal from an order made prior to the effective date of CPLR 3121. Beldock, P.J., Christ, Rabin, Munder and Martuscello, JJ., concur.