Remigio v. City of New York — 12 A.D.3d 334

Majority

p. 334

Jacinto Remigio et al., Appellants, v City of New York et al., Respondents.

[786 NYS2d 16]

Order, Supreme Court, New York County (Faviola A. Soto, J), entered April 18, 2003, which, upon granting plaintiffs’ motion for permission to serve new medical and liability expert notices, granted defendant City’s motion to conduct an independent medical examination of the infant plaintiff, unanimously affirmed, without costs.

The motion court appropriately exercised its discretion in permitting defendant to conduct an independent medical examination of the infant plaintiff even though defendant did not move to vacate the note of issue within 20 days after its service pursuant to 22 NYCRR 202.21 (e). The temporary unavailability of one of plaintiffs’ witnesses and the permanent unavailability of another constituted a reasonable excuse for permitting plaintiffs to serve new liability and expert notices during trial and, in

p. 335

turn, for permitting defendant City the requested discovery. Concur—Nardelli, J.P., Mazzarelli, Saxe, Friedman and Catterson, JJ.