Friedman v. Mealy , 195 N.Y.S.2d 439 ( 1960 )

Walter R. Hart, J.

Motion to reconsider the denial of plaintiffs’ motion for an order directing defendants to furnish plaintiffs with a copy of the report of defendants’ examining physician is granted and upon such reconsideration the motion is granted.

This court denied the application in the first instance because the statement of readiness had been filed. In arriving at this conclusion the court was guided by subdivision (a) of section (9) of the Special Rules of the Appellate Division, Second Department, relating to the requirement of filing statements of readiness, which reads as follows: “ The purpose of this Statement of Readiness Rule is * * * that * * * only those actions in which all the preliminary proceedings have been completed and which are actually ready for trial, shall be on the Trial Calendar.” In a similar case where this court made the same ruling the Appellate Division reversed, stating, 1 ‘ The furnishing of the report could in no way delay the trial of the cause when reached. ’ ’ (Berken v. Levitt, 8 A D 2d 938. See, also, Yudenfreund v. Mortimer, 9 A D 2d 935.)

Accordingly, the court is constrained to grant the instant motion. It is also bound to deny defendants’ request embraced in the original affidavit in opposition to the motion that the relief be conditioned on plaintiffs’ furnishing defendants with a copy of reports of their own physician. (Baum v. Nussenbaum, 7 A D 2d 991. See, also, Yudenfreund v. Mortimer, supra.)

Nor is there any basis to defendants’ contention that plaintiffs, by making the instant motion at this time, attempt to circumvent the Buies of Civil Practice by moving for reargument more than 10 days after the original decision. There is no rule regulating the time limit within which a motion to reargue must be made. The only limitation is that a motion to reargue must be made within the time limited for the taking of an appeal (1 CarmodyWait, New York Practice, p. 680). No order was ever entered on the denial of the original motion. The instant motion is, therefore, timely.

Settle order on notice.