Majority
p. 390Amanda Leon, an Infant, by Her Mother and Natural Guardian, Desiree Leon, et al., Respondents, v Tchaika Renewal Co., Ltd., Appellant, et al, Defendant. [639 NYS2d 38]
We agree with the IAS Court that defendant waived its right to conduct a physical examination of plaintiff. After the filing of a note of issue the parties had entered into a stipulation in
p. 391
which plaintiff had consented to the exam in exchange for defendant’s forbearance from seeking vacatur of the note of issue. However, defendant designated a physician who was not only unqualified to evaluate the type of injuries in issue but who actually stated to plaintiff, upon her arrival at his office, that he would not examine her precisely because he was not qualified to do so. Further, defendant has failed to show any unusual or unanticipated circumstances justifying post-note of issue disclosure (see, Price v Bloomingdale’s, 166 AD2d 151 ). Concur — Milonas, J. P., Kupferman, Nardelli and Mazzarelli, JJ.