May v. American Red Cross

—Order, Supreme Court, Bronx County (Howard Silver, J.), entered July 17, 2000, which, upon denying defendant’s motion to vacate the note of issue, insofar as appealed from, directed plaintiff to submit to a physical examination, unanimously affirmed, without costs. Although defendant waived its right to physically examine plaintiff by failing to comply with the deadlines set in three prior orders, we decline to disturb the motion court’s exercise of discretion where the action will remain on the calendar and it does not otherwise appear that the requested physical examination will prejudice plaintiff (see, Urena v Bruprat Realty Corp., 179 AD2d 505; Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 168 AD2d 376). Concur — Williams, J. P., Ellerin, Wallach, Lerner and Rubin, JJ.