Delgado v. Fogle

The action is to recover damages, inter alia, for personal injuries sustained by plaintiff Luz Maria Delgado. The question presented upon this appeal is whether defendants who, having been served by the plaintiffs with a notice of availability for physical examination pursuant to former rule I of part 4 of the Rules of the Appellate Division, Second Department (retitled and renumbered 22 NYCRR 672.1), neglect either to conduct the examination at the time and place specified in the notice or, in the alternative, to move to modify or vacate the notice within the time permitted, thereby waive…