Kerr v. Dunham

Order unanimously reversed on the law with costs, motion denied and cross motion granted. Memorandum: Defendant failed to demonstrate special, unusual and extraordinary circumstances sufficient to authorize Supreme Court to permit defendant to conduct a physical examination of the injured plaintiff David A. Kerr more than five months after filing of the note of issue and statement of readiness (see, Laudico v Sears, Roebuck & Co., 125 AD2d 960 ; Levine v McFarland, 98 AD2d 795 , 796). Under the circumstances, Supreme Court should have denied defendant’s motion and should have granted plaintiffs’ cross motion for a protective order. (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J. — Discovery.) Present — Pine, J. P., Balio, Fallon, Doerr and Davis, JJ.