Summary
In Gaglia v. Wells, 112 A.D.2d 138, 490 N.Y.S.2d 829 (1985), the appellate court affirmed an order denying a physical examination of the defendant after the defendant testified before trial that he had no recollection of the circumstances surrounding the accident.
Summary of this case from State ex rel. C.S. v. DowdOpinion
July 1, 1985
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Order modified by deleting the fourth decretal paragraph thereof denying that branch of plaintiff's motion which sought to obtain a copy of a statement made by defendant Wells to his insurer and substituting therefor a provision granting that branch of plaintiff's motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements.
Defendant Wells' physical condition was not placed in controversy by plaintiff's unsupported allegations that Wells was intoxicated at the time of the accident ( cf. Koump v. Smith, 25 N.Y.2d 287; Turner v. Town of Amherst, 62 Misc.2d 257). Neither was it placed in controversy by the testimony of defendant Wells at an examination before trial that he had no recollection of the circumstances surrounding the accident. Presumably he is not asserting his loss of memory as a basis for absolving himself of liability; he is simply testifying as to his lack of recollection of the facts of the accident. Therefore, he may not be charged with putting his physical condition in controversy ( cf. Koump v. Smith, supra; Estabrook Co. v Masiello, 75 Misc.2d 784; Fisher v. Fossett, 45 Misc.2d 757). Because plaintiff has failed to clearly and unequivocally show that defendant Wells' physical condition is in controversy, we affirm Special Term's denial of those branches of her motion which sought to obtain certain of his hospital and medical records and to conduct a physical examination of him ( cf. CPLR 3121 [a]; Schlagenhauf v. Holder, 379 U.S. 104; Courtney v Olsen, 45 Misc.2d 283).
However, plaintiff is entitled to a copy of a statement allegedly made by defendant Wells to his insurer regarding the circumstances surrounding the accident. While such a statement constitutes material created by or for a party or his agent in preparation for litigation and is, therefore, conditionally privileged ( see, CPLR 3101 [d]; Cohen v. Hardy, 23 A.D.2d 793), plaintiff has shown that it can no longer be duplicated, since defendant Wells now cannot recall the accident, and that withholding it would result in injustice and undue hardship since the only other witness to the accident, the plaintiff, has amnesia. Therefore, that branch of plaintiff's motion seeking a copy of the alleged statement is hereby granted ( cf. CPLR 3101 [d]; Vernet v. Gilbert, 90 A.D.2d 846). If, as defendant Wells seems to suggest, no such statement exists, an affidavit to that effect from a representative of his insurance company will fulfill his obligation. Thompson, J.P., Brown, Weinstein and Kunzeman, JJ., concur.