Johnson v. M & A Trucking Co.

— In a negligence action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Nassau County, entered January 7, 1969, which granted plaintiff’s motion to remove the action from the District Court of Nassau County to the Supreme Court, Nassau County, and for other related relief. Order modified, on the law and the facts, by adding thereto a decretal provision that the granting of the motion is conditioned on plaintiff’s submitting to a new physical examination if demanded by defendants upon 20 days’ written notice. As so modified, order affirmed, with $10 costs and disbursements to respondent. In our opinion, under the facts disclosed, the Special Term properly exercised its discretion in permitting the removal of the action to the Supreme Court and in granting the other related relief. We feel, however, that the order should have been conditioned upon plaintiff’s submitting to a new physical examination. Brennan, Acting P. J., Rabin, Hopkins, Martuscello and Kleinfeld, JJ., concur.