Opinion
2013-01-9
Isaiah HEDGEPETH, etc., respondent, v. UNION BAPTIST CHURCH OF BROOKLYN, INC., appellant.
Rutherford & Christie, LLP, New York, N.Y. (David S. Rutherford of counsel), for appellant.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated January 31, 2012, which denied its motion to compel the plaintiff to submit to X-ray testing of his left distal humerus and right distal humerus in connection with a physical examination.
*905ORDERED that the order is reversed, on the law, with costs, and the defendant's motion to compel the plaintiff to submit to X-ray testing of his left distal humerus and right distal humerus in connection with a physical examination is granted.
Where, as here, a plaintiff has put his or her physical condition at issue and displays symptoms that simultaneously are serious, complex, and perplexing, he or she may be compelled to undergo additional objective testing procedures that are safe, painless, and noninvasive ( see Bobka v. Mann, 308 A.D.2d 497, 498, 764 N.Y.S.2d 847;Thomas v. Mather Mem. Hosp., 162 A.D.2d 521, 556 N.Y.S.2d 720;Lapera v. Shafron, 159 A.D.2d 614, 614–615, 552 N.Y.S.2d 668), including X-ray testing ( see Tidwell v. Villaman, 100 A.D.3d 865, 954 N.Y.S.2d 579;Louis v. Cohen, 221 A.D.2d 509, 633 N.Y.S.2d 594;Healy v. Deepdale Gen. Hosp., 145 A.D.2d 413, 535 N.Y.S.2d 404). In opposition to the defendant's showing that X-ray testing would assist it in ascertaining the nature and extent of the injuries claimed, the plaintiff failed to establish that X-ray testing of his left and right distal humeri would be dangerous or harmful ( see Tidwell v. Villaman, 100 A.D.3d at 865, 954 N.Y.S.2d 579;Healy v. Deepdale Gen. Hosp., 145 A.D.2d at 413, 535 N.Y.S.2d 404;Captain v. Kobak, 95 A.D.2d 766, 463 N.Y.S.2d 243;Castrillon v. City of New York, 91 A.D.2d 986, 457 N.Y.S.2d 843). Accordingly, the defendant's motion to compel the plaintiff to submit to X-ray testing of his left distal humerus and right distal humerus in connection with a physical examination by its examining physician should have been granted.