[*2]Appeal by plaintiff from so much of an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered October 10, 2002, as, upon reargument, adhered to its September 6, 2002 order granting defendants' motion to compel independent medical examinations.

Order modified by providing that, upon reargument, defendant's motion to compel independent medical examinations is denied; as so modified, affirmed without costs.

Defendants initially waived their right to conduct independent medical examinations inasmuch as they failed to conduct them prior to the filing of the March 2001 notice of trial and certificate of readiness, or within the time period set forth in the preliminary conference order (see Rodriguez v Sau Wo Lau, 298 AD2d 376; James v New York City Tr. Auth., 294 AD2d 471; Schenk v Maloney, 266 AD2d 199, 200; Mayo v Lincoln Triangle Assocs. Inc., 248 AD2d 362), and they did not move to strike the notice of trial or timely move to compel such examinations (see 22 NYCRR 208.17; Kanterman v Palmolotti, 122 AD2d 116).

Although the rib fracture, a new injury specified in plaintiff's December 2001 supplemental bill of particulars, is clearly an "unusual or unanticipated circumstance" arising after the notice of trial and certificate of readiness were filed in March 2001 (see Audiovox Corp. v Benyamini, 265 AD2d 135, 140), and would normally allow defendants to obtain examinations after the notice of trial has been filed (see 22 NYCRR 208.17 [d]), inasmuch as plaintiff has withdrawn said supplemental bill of particulars, which defendants, in any event, allegedly rejected as untimely, no basis exists upon which to [*3]allow defendants to conduct said examinations. Consequently, upon reargument, defendants' motion to compel is denied.

Aronin, J.P. and Golia, J., concur.

Patterson, J., taking no part.
Decision Date: October 01, 2003