Opinion
November 7, 1958
Ludwig Schiffer for plaintiff.
Russell B. Greaves ( O'Hagan, Reilly Beasley of counsel), for defendant.
Motion by plaintiff for a discovery and inspection of the records and report of a physical examination made of the plaintiff by the defendant's doctor. The physical examination was had on plaintiff's consent and without the necessity for a court order.
In this Department, it has long been the custom to require a copy of the doctor's report to be furnished to the party examined where the examination was made pursuant to a court order ( Di Salvo v. Di Giacomo, 2 Misc.2d 1068), but not when the examination was granted voluntarily ( Andrews v. Ghikas, 278 App. Div. 658). More recently, however, there has been a trend toward full disclosure of each side's case with a view to preventing surprise and expediting the trial. ( Del Ra v. Vaughan, 2 A.D.2d 156; Wilhelm v. Abel, 1 A.D.2d 55.) In line with this change of policy, there appears to be no reason for penalizing a plaintiff who consents to an examination without putting his adversary to the trouble of making a motion therefor ( Martin v. La Fonte, 53 N.Y.S.2d 415), and this policy has recently been adopted even in the First Department which formerly did not require service of a copy of the report on the party examined ( Totoritus v. Stefan, 10 Misc.2d 881, affd. 6 A.D.2d 123).
The motion is accordingly granted.
Submit order.