Andresen v. Waller Const. Corp.

• Decision Date: 10 October 1967
• Citation: 283 N.Y.S.2d 651,28 A.D.2d 982
• Court: New York Supreme Court — Appellate Division
• Parties: Kaare ANDRESEN, Plaintiff-Appellant, v. WALLER CONSTRUCTION CORP., 44th Street Leasing Corp. and Limon Supply and Building Corp., Defendants-Respondents.

Page 651

283 N.Y.S.2d 651

28 A.D.2d 982

Kaare ANDRESEN, Plaintiff-Appellant, v. WALLER CONSTRUCTION CORP., 44th Street Leasing Corp. and Limon Supply and Building Corp., Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Oct. 10, 1967.

M. D. Kors, New York City, for plaintiff-appellant.

S. L. Birnhaum, E. T. Schleider, New York City, for defendants-respondents.

Before EAGER, J.P., and CAPOZZOLI, RABIN, McGIVERN and WITMER, JJ.

PER CURIAM.

Order entered January 25, 1967 unanimously reversed, on the law and the facts, with $30 costs and disbursements to the plaintiff-appellant, and the motion for a physical examination is denied without prejudice to an application at the time of trial for a physical examination as to the then existing condition of the plaintiff.

Some twenty months after the statement of readiness was filed by the plaintiff, the defendants-respondents brought this motion for a physical examination. Upon the papers submitted the motion should have been denied. Rule IV(4)(g) of part 1 of the Rules of the Supreme Court of New York and Bronx County provides that after the filing of a statement of readiness 'no pre-trial examination or other preliminary proceedings may be had unless * * * unusual and unanticipated conditions subsequently develop which make it necessary that further pre-trial examination or further preliminary proceedings be had'.

The moving defendants did not bring themselves within the exception to the Rule. Their allegations in support of the motion do not show unusual and unanticipated conditions. The only excuse offered for not seeking the physical examination prior to the statement of readiness having been filed, is in effect, that they understimated the extent of plaintiff's injuries. Upon this record such excuse is not tenable, for the bill of particulars clearly shows, and in detail sets forth the claimed injuries. It puts the defendant on notice as to their severity. It is quite apparent that the excuse offered is advanced solely to obviate Rule IV(4)(g) of part 1, supra.

In any event, even if defendants did indeed underestimate the extent of plaintiff's injuries, and for that reason did not timely seek a physical examination, nevertheless this proffered mistake in judgment does not come within the exception to Rule IV(4)(g) of part 1, supra. It is not such a subsequent development as would allow a physical examination after the statement of readiness had been filed.

While we...