Opinion
October 25, 1955.
J.W. Bernstein and Ralph A. Matalon for claimants.
Jacob K. Javits, Attorney-General ( Robert L. Horkitz of counsel), for defendant.
It is alleged that the infant sustained a fractured arm as a result of the State's negligence. The examination of the infant by the State's physician indicated the desirability of obtaining X rays of the affected arm and the State now moves for a further examination for that purpose. Claimant is agreeable that the motion be granted, provided a copy of the findings of the State's physician is delivered to him, and further, that if the X-ray plates indicate anything but a positive condition that claimant's physician be afforded an opportunity to inspect the X-ray plates. The State maintains that this condition may not be imposed upon it and, ordinarily, that would be so. ( Valentine v. State of New York, 197 Misc. 972.) However, it appears that there was an exchange of correspondence between the Attorney-General and claimant's counsel which, in effect, makes for an understanding that claimant would agree to the X-ray examination provided that he receive "a copy of the findings and if said findings are not positive, that our doctor be permitted to see the x-ray plates." In these circumstances (cf. Andrews v. Ghikas, 278 A.D. 658), the motion of the State will be granted upon the condition that after the X rays are taken, a copy of the findings is to be delivered to the claimant and, in the event that the findings are not positive, that the X-ray plates will be made available for inspection by claimant's physician; otherwise the motion will be denied.