DOMINGUEZ v. MANHATTAN BRONX SURFACE

Defendant moved to vacate the note of issue and to strike the action from the Trial Calendar so that it could conduct a neurological/psychological examination of plaintiff. Generally, the failure to move to vacate a note of issue and certificate of readiness within 20 days of service constitutes a waiver of the right to conduct a subsequent physical examination, absent a showing of special circumstances or adequate reason for the delay (Sewell v. Singh, 160 A.D.2d 592). Nevertheless, in certain circumstances where no prejudice would result, a party may be relieved of its waiver (Williams v. Long Is. Coll. Hosp., 147 A.D.2d 558).

The instant record clearly establishes the need for a neurological/psychological examination of plaintiff by defendant in view of plaintiff's physicians' findings. In this regard, the prior orthopedic examination is irrelevant, as defendant is entitled to have the opinion of an expert in neurology, a different medical discipline. (See, Rouen v. Chrysler Credit Corp., 145 A.D.2d 381, 382.) Further, there is no prejudice to plaintiff as the IAS court directed that the matter remain on the Trial Calendar. (Williams v. Long Is. Coll. Hosp., supra.)

Concur — Kupferman, J.P., Ross, Rosenberger, Asch and Wallach, JJ.