Opinion
March 11, 1996
Appeal from the Supreme Court, Kings County (Held, J.).
Ordered that the order is reversed, as a matter of discretion, without costs or disbursements, and the motion is granted; and it is further,
Ordered that the physical examinations of the injured plaintiff shall be conducted within 90 days from the date of this decision and order at a time and place to be specified in a written notice of not less than 10 days, to be given by the defendant to the injured plaintiff, or at such other time and place as the parties may agree.
Although the defendant waived his right to a physical examination of the plaintiff by his failure to arrange for such examination within the 45-day period set forth in an order issued at a precalendar conference hearing, the circumstances of this case warrant relieving the defendant of his waiver (see, Kanterman v Palmiotti, 122 A.D.2d 116). Here, the plaintiff filed a note of issue and statement of readiness on December 7, 1994, five days after the expiration of the time period set forth in the precalendar order for conducting physical examinations of the plaintiff. Based upon the defendant's undisputed contention that his current counsel did not receive the note of issue and statement of readiness until January 13, 1995, we conclude that the defendant's motion to vacate the note of issue and statement of readiness was timely made in compliance with 22 NYCRR 202.21 (e). No prejudice would accrue to the plaintiff by reason of the short delay involved (see, Williams v Long Is. Coll. Hosp., 147 A.D.2d 558; Kanterman v Palmiotti, supra). In the interest of justice, the defendant should be permitted to conduct a physical examination of the plaintiff. Mangano, P.J., Thompson, Friedmann, Florio and McGinity, JJ., concur.