Carpenito v. Whitmarsh , 74 A.D.2d 893 ( 1980 )

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Suffolk County, dated November 20, 1978, which (1) granted plaintiff’s motion for summary judgment on the issue of liability and set the matter down for an assessment of damages, and (2) denied defendant’s cross motion (a) to vacate a prior order of the same court, dated February 21, 1978, which struck his answer for his willful failure to submit to a physical examination, and (b) for a protective order vacating the plaintiff’s notice to submit to a physical examination. Order reversed, without costs or disbursements, plaintiff’s motion for summary judgment denied, defendant’s cross motion granted, order dated February 21, 1978 vacated, answer reinstated, and plaintiff’s notice to submit to a physical examination vacated, all upon condition that counsel for defendant personally pay $500 to plaintiff. The payment shall be made within 20 days after service upon the defendant’s attorneys of a copy of the order to be made hereon, together with notice of entry thereof. In the event that the condition is not complied with, then order affirmed, with $50 costs and disbursements. In this personal injury negligence action, the physical condition of the defendant was not in issue. It was, therefore, an improvident exercise of discretion to strike his answer for his willful failure to submit to a physical examination and to grant plaintiff summary judgment as to liability because the answer had been stricken. The costs awarded plaintiff are to be paid by counsel for defendant personally since they delayed unduly in moving for a protective order vacating the plaintiff’s notice of physical examination, and through inadvertence did not appear or oppose plaintiff’s motion to strike the answer for defendant’s willful failure to submit to a physical examination. Mangano, J. P., Cohalan, Martuscello and O’Connor, JJ., concur.