MAY v. AMERICAN RED CROSS

Although defendant waived its right to physically examine plaintiff by failing to comply with the deadlines set in three prior orders, we decline to disturb the motion court's exercise of discretion where the action will remain on the calendar and it does not otherwise appear that the requested physical examination will prejudice plaintiff (see, Urena v. Bruprat Realty Corp., 179 A.D.2d 505; Dominguez v. Manhattan Bronx Surface Tr. Operating Auth., 168 A.D.2d 376).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.