WISE v. Mark Waymmann, et al., Defendants. (2001)

Order, Supreme Court, New York County (Marcy Friedman, J.), entered May 30, 2001, which granted the motion of defendants Lillie Blue and Darrell Reaves to vacate a prior order denying their motion to strike the note of issue and directed plaintiffs to submit to physical examinations, unanimously affirmed, with costs.

 The motion court properly exercised its discretion in vacating its default order entered solely as a result of defendants' failure to timely appear for oral argument (see, Vitiello v. Mayrich Constr. Corp., 255 A.D.2d 182, 680 N.Y.S.2d 482).   Defendants provided a reasonable excuse for their “default” (see, CPLR 5015[a][1];  Kramer v. Edenwald Constr. Co., 261 A.D.2d 284, 690 N.Y.S.2d 259) and demonstrated that their motion to strike the note of issue had merit, no independent medical examination of plaintiffs having yet been performed (see, Ortiz v. Arias, 285 A.D.2d 390, 727 N.Y.S.2d 879).   Finally, although defendants evidently waived their right to physical examinations of plaintiffs, defendants, in the interests of justice, were properly relieved of such waiver in the absence of any showing that such relief would prejudice plaintiffs (Williams v. Long Is. Coll. Hosp., 147 A.D.2d 558, 559, 537 N.Y.S.2d 853;  Roberson v. Fordham Rent-A-Car Corp., 38 A.D.2d 535, 326 N.Y.S.2d 844).

We have considered plaintiffs' remaining arguments and find them unavailing.