Opinion
January 29, 1980
Order, Supreme Court, New York County, entered September 11, 1979, is modified, in the exercise of discretion, to condition the granting of defendant-respondent's motion to direct plaintiff to submit to a physical examination upon payment, within 20 days after service of a copy of the order entered hereon, by the attorney for defendant-respondent personally of $500 costs to plaintiff-appellant, and otherwise affirmed, with costs and disbursements of this appeal, to be paid by defendant-respondent to plaintiff-appellant, and in default of the payment of all such costs, as aforesaid, the order appealed from is reversed, in the exercise of discretion, and the motion to direct plaintiff to submit to physical examination is denied, with costs and disbursements of this appeal, to be paid by defendant-respondent to plaintiff-appellant. The excuse for inordinate delay in responding timely to notice of plaintiff's availability for physical examination is not in accord with the established facts. In these circumstances we have imposed the stated sanction.
Concur — Murphy, P.J., Kupferman, Ross, Markewich and Lynch, JJ.