Wolanin v. Halliman

mously reversed on the law with costs and motion denied, in accordance with the following memorandum: It was an improvident exercise of discretion for Special Term to grant defendants additional discovery and a physical examination of plaintiff (see, Siragusa v Teal’s Express, 96 AD2d 749 ). By demanding that plaintiff file a note of issue pursuant to CPLR 3216, defendants waived their right to have plaintiff examined and to obtain additional discovery (see, Gray v Crouse-Irving Mem. Hosp., 107 AD2d 1038 ). (Appeal from order of Supreme Court, Erie County, Wolfgang, J. — discovery.) Present — Callahan, J. P., Boomer, Green, Pine and Davis, JJ.