Smith v. A.A. Truck Renting Corp.

Full title: STANLEY SMITH, Plaintiff, v. A.A. TRUCK RENTING CORP. et al., Defendants

Court: Supreme Court, Special Term, Kings County

Date published: May 9, 1962

35 Misc. 2d 72 (N.Y. Sup. Ct. 1962)

229 N.Y.S.2d 77

Opinion

May 9, 1962

Isaac M. Rothenberg for plaintiff.

Manuel Davis for defendants.

BENJAMIN BRENNER, J.

Plaintiff has failed to indicate whether or not the defendant has conducted a physical examination of the plaintiff. In the event that such an examination has been conducted, the plaintiff must either submit a copy of the report of said physician or a copy of a notice to the defendant, served after March 1, 1962, with proof of service, demanding a copy of the report of the physician conducting the examination, and a statement that more than 20 days have elapsed since said demand, and that said physician's report has not been served. In the event that no examination has been conducted, the plaintiff must submit a copy of a notice to the defendant that plaintiff is available for physical examination, with proof of service, and a statement that plaintiff has not responded thereto within the allowed time or has failed to conduct said examination ( Mack v. 842 Myrtle Ave. Realty Corp., 34 Misc.2d 177). In the absence of these papers the motions for preferences under article III of the Special Readiness Rule of the Appellate Division, Second Department, and rule 151 of the Rules of Civil Practice will be denied with leave to renew upon proper papers.

Since the classification problems have not yet been disposed of the motion to strike the answer for default on the examination before trial, should properly be made at Special Term, Part I.