Opinion
Decided March 22, 2006.
Defendants appeal from that portion of an order of the Civil Court, Bronx County (Wilma Guzman, J.), entered January 12, 2005, which precluded them from producing evidence at trial and denied their cross-motion for preclusion.
Order (Wilma Guzman, J.), entered January 12, 2005, modified to vacate the order of preclusion and allow defendants to conduct a physical examination of plaintiff and inspection of the blinds within 45 days of the entry of this order, and as modified, affirmed, without costs.
PRESENT: McCOOE, J.P., DAVIS, GANGEL-JACOB, JJ
The court improvidently exercised its discretion in precluding defendants from producing evidence at trial and denying their request for a short extension of time to conduct an independent medical examination (IME) of plaintiff and an inspection of the blinds that allegedly caused her injuries. Although the court's compliance conference order included language providing that a failure to comply with the schedule would result in the waiver of the IME and inspection, a defendant may be relieved of such waiver where, as here, there is no showing that such relief will prejudice the plaintiff ( see Smith v. Mousa, 305 AD2d 313, 314). Had the IME and inspection gone forward on the dates scheduled by defendants, any prejudice in the short delay would have been minimal ( see Leugemors v. Slawinski, 255 AD2d 913, 913-14). Also mitigating in defendants' favor are the facts that their failure to comply does not appear to have been willful and that prompt efforts were made to rectify the oversight.
We find no abuse of discretion in the denial of defendants' cross motion for preclusion.
This constitutes the decision and order of the court.
I concur.