Bonaparte v. Fermin

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County, dated August 27, 1980, which (1) granted the motion of defendants Lunn and Brooks to strike the action from the Trial Calendar on the ground that they had not conducted a physical examination of the infant plaintiff, on condition that their attorney personally pay plaintiffs $250, and (2) directed the infant plaintiff to submit to a physical examination. Order affirmed, without costs or disbursements. The time to pay the $250, if it has not already been paid, is extended until 20 days after service upon respondents’ attorney of a copy of the order to be made hereon, together with notice of entry thereof. The examination shall proceed at the place designated in the order under review, at a time to be fixed in a written notice of not less than 10 days, to be given by defendants Lunn & Brooks within 10 days after payment is made, or at such other time and place as the parties may agree. Under all of the circumstances in this case, Special Term properly exercised its discretion in granting the relief sought. In reaching our determination, we have not considered any matter dehors the printed record on appeal other than the bills of particulars [596] served by the plaintiffs (see Matter of Dwyer, 57 AD2d 772, mot for lv to app den 45 NY2d 709). Hopkins, J.P., Titone, Rabin and Weinstein, JJ., concur.