Santiago v. 679 Waring Avenue LLC

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about July 3, 2003, which restored plaintiffs 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. This action was marked off the trial calendar due solely to circumstances connected to the reorganization of defendant’s 410 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 AD2d 592, 593 [1990]). In certain circumstances where no prejudice would result, a party may be relieved of its waiver (Williams v Long Is. Coll. Hosp., 147 AD2d 558, 559 [1989]). 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. Concur— Buckley, P.J, Mazzarelli, Saxe, Sullivan and Rosenberger, JJ.