Willie Mosley v Elgar Flavius

Mosley v Flavius 2004 NY Slip Op 09047 [13 AD3d 346] December 6, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Willie Mosley, Appellant,
v
Elgar Flavius, Respondent, et al., Defendants.

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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Ruditzky, J.), dated May 4, 2004, as, in effect, granted that branch of the motion of the defendant Elgar Flavius which was to strike the action from the trial calendar to the extent of directing the plaintiff to appear for an independent medical examination within 60 days.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in granting that branch of the motion of the defendant Elgar Flavius which was to strike the action from the trial calendar to the extent of directing the plaintiff to appear for an independent medical examination within 60 days. As Flavius's motion was timely, he was only required to demonstrate that the action was not ready for trial (see 22 NYCRR 202.21 [e]; Rizzo v DeSimone, 287 AD2d 609, 610 [2001]; Perla v Wilson, 287 AD2d 606 [2001]; Audiovox Corp. v Benyamini, 265 AD2d 135, 139-140 [2000]). Krausman, J.P., Luciano, Mastro and Lifson, JJ., concur.