Opinion
April 6, 1998
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the appeal from the transcript dated June 19, 1997, is dismissed, as the transcript is not a paper from which an appeal can be taken (see, Ojeda v. Metropolitan Playhouse, 120 A.D.2d 717; CPLR 2219 [a]; 5512 [a]); and it is further,
Ordered that the order dated June 24, 1997, is reversed insofar as appealed from, and the motion is denied; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The defendants waived their right to conduct physical examinations of the plaintiff when they failed to arrange for the examinations to be conducted during the time period set by the court in its preliminary conference order and, thereafter, when they again failed to conduct the examinations within the time period set in the court's order of August 28, 1996 (see, Kanterman v. Palmiotti, 122 A.D.2d 116; Levine v. McFarland, 98 A.D.2d 795). Since the matter has now been restored to the Trial Calendar, the defendants were required to show the existence of unusual or unanticipated circumstances, which developed subsequent to the time of such reinstatement, before the Supreme Court could grant additional pretrial proceedings, i.e., the requested physical examinations. Since the defendants failed to do so, the Supreme Court was without authority to permit additional pretrial proceedings and improvidently exercised its discretion by allowing physical examinations of the plaintiff at this time on condition that the defendants pay a sanction (see, 22 NYCRR 202.21 [d]; Mayo v. Lincoln Triangle Assocs., 248 A.D.2d 362).
The parties' remaining contentions are either without merit or academic in light of our determination.
Sullivan, J.P., Friedmann, Florio and Luciano, JJ., concur.