General

Thomas Edwards, Appellant, v. Steven Smallwood et al., Respondents

237 A.D.2d 109655 N.Y.S.2d 345·New York Supreme Court, Appellate Division·1997·NY

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Opinion

Thomas Edwards, Appellant, v Steven Smallwood et al., Respondents. [655 NYS2d 345] [MAJORITY] —Order, Supreme Court, Bronx County (Barry Salman, J.), entered January 23, 1996, which granted defendants’ motions to vacate plaintiff’s note of issue and statement of readiness, unanimously affirmed, without costs. The action was properly struck from the trial calendar upon the ground that plaintiffs note of issue and certificate of readiness incorrectly stated that defendants had waived their right to a physical examination of plaintiff (22 NYCRR 202.21 [e]). As the motion court stated, the notice of availability served by plaintiffs attorneys was "of no value” since plaintiffs whereabouts at the time were unknown, even to his own attorney, and did not become known until shortly before plaintiff filed the note of issue. Concur—Rosenberger, J. P., Ellerin, Tom and Mazzarelli, JJ.