Wise v. Blue

Order, Supreme Court, New York County (Marcy Friedman, J.), entered May 30, 2001, which granted the motion of defendants Lillie Blue and Darrell Reaves to vacate a prior order denying their motion to strike the note of issue and directed plaintiffs to submit to physical examinations, unanimously affirmed, with costs. The motion court properly exercised its discretion in vacating its default order entered solely as a result of defendants’ failure to timely appear for oral argument (see, Vitiello v Mayrich Constr. Corp., 255 AD2d 182). Defendants provided a reasonable excuse for their “default” (see, CPLR 5015 [a] [1]; Kramer v Edenwald Constr. Co., 261 AD2d 284) and demonstrated that their motion to strike the note of issue had merit, no independent medical examination of plaintiffs having yet been performed (see, Ortiz v Arias, 285 AD2d 390). Finally, although defendants evidently waived their right to physical 132 examinations of plaintiffs, defendants, in the interests of justice, were properly relieved of such waiver in the absence of any showing that such relief would prejudice plaintiffs (Williams v Long Is. Coll. Hosp., 147 AD2d 558, 559; Roberson v Fordham Rent-A-Car Corp., 38 AD2d 535). We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Lerner, J. P., Saxe, Buckley, Friedman and Marlow, JJ.