Adams v. Deloreto

—Order unanimously modified on the law and in the exercise of discretion and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court did not abuse its discretion in assessing costs of $1,000 upon plaintiff (see, CPLR 3126; Flynn v Debonis, 246 AD2d 852, 853; Wolford v Cerrone, 184 AD2d 833, 834; Renford v Lizardo, 104 AD2d 717, 718). Under the circumstances of this case, however, it was an abuse of discretion to require plaintiff “personally” to pay such costs as a condition of her being permitted to attend a further independent medical examination. We therefore modify the order by deleting the word “personally” from the first ordering paragraph. Moreover, although it was not an abuse of discretion for the court to 876 preclude plaintiff from presenting proof of her claim as a result of her failure to attend the first three scheduled examinations (see, Flynn v Debonis, supra, at 853; Wolford v Cerrone, supra, at 834; Henderson v Stilwell, 116 AD2d 861, 862-863), we nonetheless, in the exercise of our discretion, further modify the order, in order to afford plaintiff one final chance to comply with discovery, by providing in the second ordering paragraph that plaintiff has 40 days, from the date of service of a copy of the order of this Court with notice of entry, within which to attend a physical examination with Dr. Frank Luzi (see, Kimmel v State of New York, 267 AD2d 1079; Miller v Duffy, 126 AD2d 527, 528). (Appeal from Order of Supreme Court, Niagara County, Joslin, J. — Discovery.) Present — Pigott, Jr., P. J., Green, Hurlbutt, Kehoe and Balio, JJ.