Pipers v. Rosenow

In a [691] medical malpractice action to recover damages for personal injuries, plaintiff 'appeals from an order of the Supreme Court, Queens County, dated February 5, 1968, which granted defendant Rosenow’s motion pursuant to CPLR 3121 for an order directing plaintiff to submit to a physical examination. Order affirmed, without costs. The examination shall proceed at the place directed in the order under review at a time specified in a written notice of not less than 10 days, to be given by defendant Rosenow, or at such other time and place as the parties may stipulate. The introductory paragraph in part 4 of the Rules of the Appellate Division, Second Department, which purports to preclude physical examinations and the exchange of medical reports in “ actions for medical or dental malpractice ”, is superseded by CPLR 3121, which does not exclude such actions from the scope of its application (CPLR 101; De Castro v. City of New York, 54 Misc 2d 1007; Mackey v. Holy Family Hosp., 52 Misc 2d 770; Fiore v. Bay Ridge Sanitorium, 48 Misc 2d 318). Our holding in Griffin v. Jewish Hosp. of Brooklyn (20 A D 2d 563) is not controlling since that case involved an appeal from an order made prior to the effective date of CPLR 3121. Beldock, P. J., Christ, Rabin, Munder and Martuscello, JJ., concur.