COSTANZA v. SKYLINE TOWERS 5

ORDERED that the order is modified, on the law and as a matter of discretion, by (1) deleting the provision thereof granting that branch of the motion which was, in the alternative, to compel discovery only to the extent of directing a deposition of the defendants third-party plaintiffs and a physical examination of the plaintiff, and (2) deleting the provision thereof, in effect, denying that branch of the motion which was to vacate the note of issue and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the appellant.

Under the circumstances, the Supreme Court improvidently exercised its discretion in denying that branch of the appellant's motion which was to vacate the note of issue in order to permit it to conduct discovery proceedings ( see generally Audiovox Corp. v. Benyamini, 265 A.D.2d 135; 22 NYCRR 202.21[e]).

In view of our determination, we do not reach the appellant's contention that the third-party action should have been severed.

FLORIO, J.P., LUCIANO, TOWNES and FISHER, JJ., concur.