Opinion
December 5, 1961
Order entered on September 13, 1960, denying plaintiffs' motion to vacate the dismissal of the action unanimously reversed, in the exercise of discretion, without costs, the dismissal vacated and the cause restored to the calendar. The trial of the action and all proceedings on the part of the plaintiffs, however, is stayed sua sponte until the plaintiffs comply with the order to submit to the physical examination by the Impartial Medical Panel. The court is vested with discretionary powers under the Special Rules for Medical Examinations. This discretion does not appear to have been abused. Therefore, the refusal of the plaintiffs to submit to the physical examination heretofore ordered at pretrial cannot be countenanced. An action should not be dismissed for failure to submit to a physical examination ordered by the court in the absence of a proper record of the considerations which impelled such a determination. (Cf. Ivory v. Widaben Realty Corp., 5 A.D.2d 266.)
Concur — Rabin, J.P., McNally, Stevens, Eager and Steuer, JJ.