Khavkin v. Green Park Essex, Inc.

In a negligence action to recover damages for personal injuries, etc., the defendants Myung H. Ha and Marvin Weiss separately appeal, as limited by their briefs, from (1) so much of an order of the Supreme Court, Queens County (Hentel, J.), dated April 12, 1991, as granted the plaintiffs’ motion to vacate an order of the same court, dated [469] June 9, 1989, which dismissed the complaint in its entirety upon the injured plaintiffs failure to appear for a physical examination, and (2) so much of an order of the same court, dated September 19, 1991, as, upon reargument, adhered to the original determination. Ordered that the appeal from the order dated April 12, 1991, is dismissed, as the order was superseded by the order dated September 19, 1991, made upon reargument; and it is further, Ordered that the order dated September 19, 1991, is reversed insofar as appealed from, as a matter of discretion, the order dated April 12, 1991, is vacated, the plaintiffs’ motion is denied, and the order dismissing the complaint is reinstated; and it is further, Ordered that the appellants are awarded one bill of costs.