Opinion
2014-02-5
Carlos RIVERA–MARTINEZ, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., respondents.
Lipsig, Shapey, Manus & Moverman, P.C. (Alan M. Shapey, and Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac], of counsel), for appellant. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent.
Lipsig, Shapey, Manus & Moverman, P.C. (Alan M. Shapey, and Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac], of counsel), for appellant. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), dated September 18, 2013, as granted that branch of the defendants' cross motion which was to direct the plaintiff to submit to physical examinations.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Although the defendants waived their right to conduct physical examinations of the plaintiff by their failure to arrange for any examination within the 60–day time period set forth in a preliminary conference order, the defendants cross-moved, within 20 days after service of the note of issue, inter alia, to strike the note of issue and demonstrated that discovery was not complete ( see22 NYCRR 202.21[e]; Gallo v. SCG Select Carrier Group, L.P., 91 A.D.3d 714, 714, 936 N.Y.S.2d 900; Spano v. Omni Eng'g, LLC, 69 A.D.3d 922, 922–923, 893 N.Y.S.2d 259; Jones v. Grand Opal Constr. Corp., 64 A.D.3d 543, 544, 883 N.Y.S.2d 253). Under the circumstances of this case, the Supreme Court providently exercised its discretion in relieving the defendants of their waiver and in granting that branch of their cross motion which was to direct the plaintiff to submit to physical examinations, since there was no showing of prejudice to the plaintiff, reflected by the fact that the case remained on the trial calendar ( see Spano v. Omni Eng'g, LLC, 69 A.D.3d at 923, 893 N.Y.S.2d 259; Jones v. Grand Opal Constr. Corp., 64 A.D.3d at 544, 883 N.Y.S.2d 253; Williams v. Long Is. Coll. Hosp., 147 A.D.2d 558, 560, 537 N.Y.S.2d 853; Kanterman v. Palmiotti, 122 A.D.2d 116, 117, 504 N.Y.S.2d 513).