Black v. Fisher Bros.

Order of the Supreme Court, Kings County, dated November 29,1966, reversed, without costs, and defendants’ motion to vacate plaintiff’s notice for pretrial examination of defendants granted. In our opinion, plaintiff must be deemed to have waived his right to an examination before trial of defendants in view of his failure to serve a notice for such examination prior to the sixtieth day after he served a note of issue (Rules of this court, part 7, rule IX). Nor does the proffered excuse of “ oversight ” in failing to timely mail his examination notice constitute an “unusual and unanticipated” condition within the meaning of rule VII of part 7 of said rules (Byrnes v. Dan’s Taxi, 18 A D 2d 807; Jacobs v. Peress, 23 A D 2d 483). Beldoek, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.