Opinion
October 4, 1994
Appeal from the Supreme Court, Bronx County (Luis Gonzalez, J.).
The plaintiff's cross motion presented papers which had not been submitted to the newly assigned IAS Judge on the previous motion because it was believed that the motion would be submitted to the prior IAS Judge, who was already familiar with the papers. Accordingly, the cross motion should not have been deemed one for reargument, as it presented facts not previously before the court (Saferstein v. Stark, 171 A.D.2d 856). For that reason, the motion was not untimely (Weaver v. State of New York, 112 A.D.2d 416).
Nevertheless, the instant order of the IAS Court was substantively correct. We affirm because plaintiff avoided the examination sought for almost a year, claiming only that the defense team would have more medical experts than he would have. Thus, it was not an abuse of discretion for the court to compel the examination (cf., Hamlin v. Mensch, 205 A.D.2d 452).
We have considered the plaintiff's remaining arguments, and find them to be without merit.
Concur — Rosenberger, J.P., Wallach, Asch and Tom, JJ.