Summary
In Nero, this Court reasoned that the moving “defendants should not be put to the time, expense and effort of arranging for and conducting a medical examination of plaintiff without the benefit of reports linking the symptoms or conditions of [the injured] plaintiff to [their] alleged negligence” (id. at 1384, 954 N.Y.S.2d 302).
Summary of this case from Giles v. YiOpinion
2012-11-9
Jaquanda NERO and Laquesha Nero, Infants by the Parent and Natural Guardian, Felicia NERO, Plaintiffs–Respondents, v. Isaac KENDRICK, Elizabeth Kendrick, Defendants–Appellants, et al., Defendant.
Burgio, Kita & Curvin, Buffalo (Steven P. Curvin of Counsel), for Defendants–Appellants. Athari & Associates, LLC, Utica (Mo Athari of Counsel), for Plaintiffs–Respondents.
Burgio, Kita & Curvin, Buffalo (Steven P. Curvin of Counsel), for Defendants–Appellants. Athari & Associates, LLC, Utica (Mo Athari of Counsel), for Plaintiffs–Respondents.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Isaac Kendrick and Elizabeth Kendrick (defendants), as limited by their brief, appeal from that part of an order that denied their motion for a protective order. Specifically, defendants sought an order “ requiring provision of a report by [Jaquanda Nero (plaintiff) ] ... causally relating an injury to plaintiff's ingestion of lead based paint....” Defendants also sought an order that would allow them “120 days within which to conduct a defense [medical examination] on behalf of the defendants ... and serve any such reports measured from the date of receipt of a report from an expert retained on behalf of the plaintiff detailing any injuries sustained by the plaintiff ... as a result of elevated blood lead levels....” In denying defendants' motion, Supreme Court concluded that it was not authorized pursuant to CPLR 3103 to order plaintiff to be examined by an expert. We reverse the order insofar as appealed from and grant defendants' motion.
Trial courts have broad discretion in supervising disclosure ( see Carpenter v. Browning–Ferris Indus., 307 A.D.2d 713, 715–716, 763 N.Y.S.2d 871), and CPLR 3103(a) affords the court the authority to deny, limit, condition or regulate the use of any disclosure device to “prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” Here, the protective order sought by defendants was appropriate relief. Defendants had previously sought medical reports from plaintiffs pursuant to 22 NYCRR 202.17 and plaintiffs responded to that request, but none of the material provided contained any information concerning any condition, symptom or problem that plaintiff was experiencing as the result of elevated blood lead levels, “the physical ... condition in issue” ( Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 457, 470 N.Y.S.2d 122, 458 N.E.2d 363). Indeed, the plaintiff in a personal injury action is under an obligation both to procure and to produce medical reports relating the claimed injury to the allegations being made in the litigation ( see Kelly v. Tarnowski, 213 A.D.2d 1054, 624 N.Y.S.2d 504). Furthermore, the court had already issued a scheduling order requiring, inter alia, defendants to conduct a medical examination of plaintiff by a date certain, and we conclude that defendants should not be put to the time, expense and effort of arranging for and conducting a medical examination of plaintiff without the benefit of reports linking the symptoms or conditions of plaintiff to defendants' alleged negligence ( see Adams v. Rizzo, 13 Misc.3d 1235 [A], 2006 N.Y. Slip Op. 52135[U], 47–48, 2006 WL 3298303;see generally Matter of Andrews v. Trustco Bank, Natl. Assn., 289 A.D.2d 910, 912–913, 735 N.Y.S.2d 640).
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs and the motion is granted.