Shamah v. J.S. & J. Realty , 149 A.D.2d 580 ( 1989 )

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated May 24, 1988, which granted the defendant’s motion to compel a physical examination of the plaintiff James Shamah.

Ordered that the order is affirmed, with costs.

The plaintiff James Shamah was injured in 1981 when he fell on a flight of stairs. In January 1986 the plaintiffs served and filed their note of issue and certificate of readiness. Despite the filing of the note of issue and certificate of readiness, the plaintiffs thereafter served upon the defendant two additional medical reports from Drs. Cooper and Rosenbaum, dated January 3, 1986, and February 6, 1986, respectively. It is significant to note that (1) the plaintiff James Shamah has never been examined by the defendant, and (2) the report of Dr. Rosenbaum states, inter alia, that James Shamah’s "condition had deteriorated” since his last visit on December 3, 1985.

The plaintiffs argue that prior to the instant application a motion to compel the injured plaintiff to submit to a physical examination was made by the defendant and denied by the Supreme Court by order dated June 17, 1987. However, an examination of the order dated June 17, 1987, indicates that the defendant’s prior motion was denied by the Supreme Court based on its mistaken assumption that the defendant was seeking "additional physical examinations of plaintiff James Shamah”. Since the plaintiff James Shamah has never submitted to a physical examination, the Supreme Court properly exercised its discretion granting the instant motion by the defendant for a physical examination. Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur.