In Kaygorodov v. Reynberg (2003 NY Slip Op 51053[U], 2003 WL 21511328 [App Term, 2d & 11th Jud Dists 2003]), the Appellate Term dealt with a situation where defendants' examining physician conducted an examination in January 1999 and gave written notice to defense counsel in July 1999 that the physician would be retiring and would not appear for testimony. But it was not until February 2002, more than two years later, that defense counsel moved for a further examination. The two-judge majority deemed the 2 1/2-year delay to be a waiver of defendants' rights. The majority also stated that, even if it was assumed that the letter notifying defense counsel of the physician's retirement was sufficient grounds for further examination, there was no claim that the practice, which included three other doctors, was no longer in existence and that the medical records were no longer available. A dissenting justice concluded that defendants had met their burden of showing the necessity for an additional, post-note examination.