Opinion
October 17, 1977
In a negligence action to recover damages for personal injuries, etc., defendants appeal from so much of (1) an order of the Supreme Court, Nassau County, dated January 12, 1977, as denied the branch of their motion which sought to strike the case from the Trial Calendar for plaintiffs' refusal to appear for a physical examination and (2) a further order of the same court, dated February 28, 1977, as, upon renewal, adhered to the portion of the prior order which denied the said branch of their motion. Appeal from the order dated January 12, 1977 dismissed, without costs or disbursements. That order was superseded by the order of February 28, 1977. Order dated February 28, 1977 reversed insofar as appealed from, without costs or disbursements, and the injured plaintiff is directed to appear for a physical examination, on condition that defendants' attorney personally pay plaintiffs the sum of $100 within 30 days after service upon defendants of a copy of the order to be made hereon, with notice of entry thereof; in the event such condition is not complied with, order affirmed insofar as appealed from, without costs or disbursements. The physical examination shall proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by defendants, or at such other time and place as the parties may agree. The time within which such notice may be served is extended until 14 days after the compliance by defendants' attorney with the above-mentioned condition. Under the circumstances of this case, the hardship and prejudice to the defendants by being deprived of the physical examination of the injured plaintiff far outweighed any possible harm to plaintiffs, and is far in excess of their one month's hiatus in failing to respond to plaintiffs' notice of availability for physical examination (see 22 NYCRR 672.1). Application by respondents for an extension of time within which to serve an answering brief denied. Hopkins, J.P., Latham, Margett and Rabin, JJ., concur.