Gettemuller v. J. & M. Leasing Corp. , 285 N.Y.S.2d 667 ( 1967 )

Ordered, entered on September 27, 1967, granting defendants’ motion for a further physical examination of plaintiff and for leave to obtain a copy of plaintiff’s 1944 Army hospital records, unanimously reversed, on the law, the facts and in the exercise of discretion, and motion denied, with $30 costs and disbursements to plaintiff-appellant. Defendants conducted a physical examination of plaintiff in April, 1961, at which time they were informed of plaintiff’s physical condition in 1944. Thereafter, in 1963, defendants requested authorization to obtain a copy of plaintiff’s 1944 Army hospital record, which request was refused by plaintiff. No further steps were taken by defendants until the present motion was made in August, 1967, which was seven months after plaintiff had filed a note of issue and statement of readiness herein. Defendants have failed to demonstrate sufficient facts entitling them to a further physical examination of plaintiff, and have, in any event, waived their right thereto and to any discovery and inspection of hospital records (Price v. Brody, 7 A D 2d 204; Pioneer Jewelry Corp. v. All Continent Corp., 24 A D 2d 436). Moreover, “the record demonstrates inexcusable loches in making the application” (Mallin v. Kossin, 25 A D 2d 509). Concur — 'Stevens, J. P., Steuer, Capozzoli, Tilzer and McNally, JJ.