Merores v. Smith

—In an action to recover damages for personal injuries, the defendant Joseph Cadore appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated July 31, 2001, which denied his motion, in effect, to vacate an order of the same court, dated May 25, 2001, and to compel the plaintiffs to submit to outstanding discovery or be precluded from offering evidence of injuries at trial.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying that branch of the appellant’s motion which was, in effect, to vacate its order dated May 25, 2001, which merely directed the plaintiff to file a note of issue within 90 days thereof (see CPLR 2221). The court also providently exercised its discretion in denying that branch of the appellant’s motion which was to compel the plaintiff to submit to an independent medical exam, as the exam had already been scheduled for a date after the appellant’s motion was made, and there was no evidence indicating that the plaintiff did not intend to appear for the scheduled exam. Ritter, J.P., Feuerstein, Goldstein, Friedmann and Crane, JJ., concur.