Cardillo v. Bonito , 681 N.Y.S.2d 752 ( 1998 )

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered March 25, 1998, denying defendants’ motions to vacate the note of issue, unanimously modified, on the law, the facts and in the exercise of discretion, to allow defendant Lydia Bonito, individually and as executrix of the Estate of Fedele Bonito, deceased, through a physician of her choice, to conduct a physical examination of plaintiff Marco Cardillo within 45 days of the entry of this order and, except as thus modified, affirmed, without costs or disbursements.

It was an improvident exercise of discretion to deny defendant the opportunity to conduct a physical examination of plaintiff Marco Cardillo on the ground that she had failed to do so within the time constraints set forth in a preliminary conference order, especially in light of the fact that the note of issue was filed four months before the discovery deadline contained in the preliminary conference order. We modify to provide for such examination. Concur — Sullivan, J. P., Rosenberger, Wallach, Mazzarelli and Andrias, JJ.