Barbara Remy et al., Respondents, v. Syosset Hospital, Defendant, and Nicholas Poloukhine, Appellant

Barbara Remy et al., Respondents, v. Syosset Hospital, Defendant, and Nicholas Poloukhine, Appellant. [MAJORITY] In a medical malpractice action, defendant Poloukhine- appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, dated August 13, 1971, as denied his motion to examine plaintiff Ramon Remy -before trial. Order reversed insofar as appealed from, without costs, and motion granted, on condition that defendant Poloukhine pay $250 to plaintiffs’ attorney. The examination shall proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by defendant Poloukhine, or at such time and place as the parties may agree upon; and said $250 shall be paid not later than the time of giving such notice or the agreement of the parties as to the time and place of the examination. In our opinion, the dilatory conduct of appeldant’s attorneys with respect to the prior opportunity to examine before trial warranted the imposition of the condition of paying $250 and the withholding of costs on this appeal, as hereinabove provided. Rabin, P. J., Hopkins, Munder, Martuscello and Brennan, JJ., concur.