RODRIGUEZ v. SAU WO LAU (2002)

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Barron, J.), dated December 12, 2001, which, in effect, granted the defendant's motion pursuant to CPLR 3124 and 3126 to dismiss the complaint unless the plaintiff Fidelio Rodriguez appeared for physical examinations.

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

 The defendant waived her right to conduct physical examinations of the injured plaintiff by failing to arrange for such examinations within the 45-day period set forth in the discovery order of the Supreme Court (see James v. New York City Tr. Auth., 294 A.D.2d 471, 742 N.Y.S.2d 855;  Schenk v. Maloney, 266 A.D.2d 199, 697 N.Y.S.2d 332;  Gill v. United Parcel Serv., 249 A.D.2d 265, 670 N.Y.S.2d 890;  Mayo v. Lincoln Triangle Assocs., 248 A.D.2d 362, 669 N.Y.S.2d 635).

 The Supreme Court improvidently exercised its discretion in directing physical examinations of the injured plaintiff as the defendant's motion to dismiss was made four months after service of the note of issue and certificate of readiness.   Since the defendant failed to move to vacate the note of issue within 20 days after its filing (see 22 NYCRR 202.21[e];  Schenk v. Maloney, supra;  Fox Co. v. Sleicher, 186 A.D.2d 537, 588 N.Y.S.2d 795), she was required to demonstrate that unusual or unanticipated circumstances developed subsequent to the filing requiring additional pretrial proceedings to prevent substantial prejudice (see 22 NYCRR 202.21[d];  Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 707 N.Y.S.2d 137).   The defendant failed to establish any unusual or unanticipated circumstances subsequent to the filing of the note of issue which would warrant relieving her of her failure to timely conduct the physical examinations (see 22 NYCRR 202.21[d];  James v. New York City Tr. Auth., supra;  Schenk v. Maloney, supra;  Gill v. United Parcel Serv., supra;  Mayo v. Lincoln Triangle Assocs., supra).