Opinion
3645N.
Decided May 13, 2004.
Order, Supreme Court, Bronx County (Nelson Roman, J.), entered on or about November 12, 2003, which directed plaintiff to appear for a physical examination within 45 days of designation of an examining physician on behalf of the defense, unanimously affirmed, without costs.
Harry I. Katz, P.C., Fresh Meadows (Victoria L. Weinman of counsel), for appellant.
Newman Fitch Altheim Myers, LLC, New York (Torin A. Dorros of counsel), for respondents.
Before: Nardelli, J.P., Andrias, Ellerin, Lerner, Marlow, JJ.
The order on appeal did not penalize plaintiff by vacating his note of issue and statement of readiness despite his inaccurate statement that a physical examination had been completed. Prior compliance orders had dealt with defendants' willful failure to designate a physician to conduct a physical examination of plaintiff. This cannot be construed as an abuse of the court's discretion.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.