Opinion
2715N, 2716N.
Decided January 20, 2004.
Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about July 3, 2003, which restored plaintiff's case to the trial calendar and denied defendant's application for further discovery, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about September 4, 2003, which denied defendant's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable order.
Michael T. Altman, for Plaintiff-Respondent.
Steven R. Lau, for Defendant-Appellant.
Before: Buckley, P.J., Mazzarelli, Saxe, Sullivan, Rosenberger, JJ.
This action was marked off the trial calendar due solely to circumstances connected to the reorganization of defendant's insurance carrier. Generally, the failure to move to vacate a note of issue and certificate of readiness within 20 days of service constitutes a waiver of the right to conduct a subsequent physical examination, absent a showing of special circumstances or adequate reason for delay ( Sewell v. Singh, 160 A.D.2d 592, 593). In certain circumstances where no prejudice would result, a party may be relieved of its waiver ( Williams v. Long Is. Coll. Hosp., 147 A.D.2d 558, 559). The record is devoid of any special circumstances or adequate excuse for the delay. Moreover, given that this matter has been on the trial calendar since March 2000, we cannot say that the 65-year-old plaintiff would not be prejudiced by further delay of the trial.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.