Peralta v. John Tara, Inc.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 31, 2006, which, in an action for personal injuries sustained when plaintiff bicyclist was struck by defendants’ vehicle, denied plaintiffs motion pursuant to CPLR 3103 (a) to amend the preliminary conference order so as to grant him priority of examination before trial, unanimously affirmed, without costs. Plaintiff argues that he is entitled to priority of examination because he served the first notice of examination on May 25, 2005, after defendants’ time to answer had expired. Defendants’ attorney represents that on May 24, plaintiffs attorney orally agreed to extend defendants’ time to answer to June 1, 2005, and, relying on such agreement, he served defendants’ answer and notice of examination on that date, thus retaining defendants’ normal priority of examination under CPLR 3106 (a). Plaintiffs attorney admits that a conversation took place on May 24, but denies that he agreed to an extension of time to answer. We note that plaintiff’s attorney did not reject the answer served on June 1, 2005, even though defendants were, according to him, in default. Under these circumstances, the motion court properly retained defendants’ normal priority (see Buchwald v Moskowitz, 142 Misc 2d 763 [1989]; cf. Church & Dwight Co. v UDDO & Assoc., 159 AD2d 275 [1990]). We have 257 considered and rejected plaintiffs other arguments. Concur— Andrias, J.E, Marlow, Sweeny, McGuire and Malone, JJ.