Opinion
April 5, 1965
In a negligence action to recover damages for personal injury, the plaintiff appeals from an order of the Supreme Court, Westchester County, entered December 9, 1964, which granted the motion of the defendant, Mynel Transportation Corp., for a physical examination of the plaintiff by a physician designated by the defendant. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, it was an improper exercise of discretion to grant a physical examination after this defendant, without any reasonable excuse, had defaulted in conducting such examination pursuant to a notice previously served by plaintiff. It was also improper to grant the examination since the defendant had failed to move to strike the action from the calendar within 20 days after plaintiff had served a statement of readiness, and since the defendant had failed to show that any unusual or unanticipated conditions had subsequently developed ( Williams v. New York City Tr. Auth., 23 A.D.2d 590; Juett v. Paesani, 19 A.D.2d 726; Byrnes v. Dan's Taxi, 18 A.D.2d 807). Beldock, P.J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.