GAMBOA v. CARNEY

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Supreme Court, Appellate Division, First Department, New York.

Shayanie GAMBOA, etc., et al., Plaintiffs-Respondents, v. John P. CARNEY, Defendant-Appellant.

Decided: May 21, 1998

SULLIVAN, J.P., and ELLERIN, WILLIAMS, MAZZARELLI and ANDRIAS, JJ. Perry S. Reich, for Plaintiffs-respondents. Peter H. Graber, for Defendant-Appellant.

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about July 30, 1997, which, in an action against defendant landlord to recover for exposure to lead paint, denied defendant's motion for an order compelling the infant plaintiff to submit to a further physical examination, unanimously affirmed, without costs.

We agree with the motion court that whatever might be the effect of aging on the progress or manifestation of an infant's lead poisoning symptoms, aging is not an unusual or unanticipated circumstance warranting departure from the readiness rule prohibiting physical examinations after a note of issue is filed (22 NYCRR 202.21[d];  see, Price v. Bloomingdale's, 166 A.D.2d 151, 560 N.Y.S.2d 288).   No excuse is offered for failing to seek this additional physical examination of the infant plaintiff no later than 20 days after the filing of the note of issue (22 NYCRR 202.21[e] ).

MEMORANDUM DECISION.