Small v. Brodsky 42

Order, Supreme Court, Bronx County (Nelson Roman, J.), entered on or about November 12, 2003, which directed plaintiff to appear for a physical examination within 45 days of designation of an examining physician on behalf of the defense, unanimously affirmed, without costs.

The order on appeal did not penalize plaintiff by vacating his note of issue and statement of readiness despite his inaccurate statement that a physical examination had been completed. Prior compliance orders had dealt with defendants’ willful failure to designate a physician to conduct a physical examination of plaintiff. This cannot be construed as an abuse of the court’s discretion. Concur—Nardelli, J.P, Andrias, Ellerin, Lerner and Marlow, JJ.