E.g., Stewart v. Nassau, No. 89-8214 (Civ. Dist. Ct. Orleans Par. Jan. 19, 1996) (court-ordered neuropsychological testing of plaintiff's non-party sister relevant in lead paint exposure case); Anderson v. Seigel, 255 A.D.2d 409, 680 N.Y.S.2d 587 (1998) (academic records of plaintiff's siblings, IQ testing of plaintiff's mother relevant to cause of Plaintiff's cognitive defects in lead paint exposure case); Salkey v. Mott, 237 A.D.2d 504, 656 N.Y.S.2d 886 (1997) (trial court's decision ordering Plaintiff's mother to take IQ test within court's discretion in lead paint exposure case). See generally, Wriggins, supra, at pp. 1073-1079.
See Def. 12/5/00 Letter at 2 ("while we are not aware of any federal cases dealing with this issue, . . . parental IQ testing can be compelled in the New York state courts upon a proper showing of relevance.") (citing Anderson v. Seigel, 680 N.Y.S.2d 587, 588 (2d Dep't 1998); Salkey v. Mott, 656 N.Y.S.2d 886 (2d Dep't 1997)). Plaintiff likewise argues the sufficiency of defendants' showing of relevance under New York State law, see Pl. 12/13/00 Letter at 4-5 (citing Andon v. 302-304 Mott Street Assocs., 94 N.Y.2d 740 (2000); Andon v. 302-304 Mott Street Assocs., 690 N.Y.S.2d 241 (1st Dep't 1999); Johnson v. Manhattan Bronx Surface Transit Operating Auth., 71 N.Y.2d 198, 204 (1988)), and ignores the fact that Rule 35 governs here.
Although defendants acknowledge that Rule 35 controls in this case, they nonetheless analyze the issue of Ms. Crespo's examination solely in terms of whether parental IQ is considered relevant under New York State case law. See Def. 12/5/00 Letter at 2 (" while we are not aware of any federal cases dealing with this issue, ... parental IQ testing can be compelled in the New York state courts upon a proper showing of relevance." ) (citing Anderson v. Seigel, 255 A.D.2d 409, 680 N.Y.S.2d 587, 588 (2d Dep't 1998); Salkey v. Mott, 237 A.D.2d 504, 656 N.Y.S.2d 886 (2d Dep't 1997)). Plaintiff likewise argues the sufficiency of defendants' showing of relevance under New York State law
The court noted that the mother's mental condition is not in dispute and that IQ results, while not confidential, are private. Under these circumstances, we are satisfied that the Appellate Division did not abuse its discretion as a matter of law in denying defendants' discovery motion. To the extent defendants rely on cases permitting discovery (see, e.g., Anderson v. Seigel, 255 A.D.2d 409; Salkey v. Mott, 237 A.D.2d 504), we emphasize that discovery determinations are discretionary; each request must be evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure (see, Williams v. Roosevelt Hosp., 66 N.Y.2d 391, 397). Absent an abuse of discretion as a matter of law, this Court will not disturb such determinations.
ORDERED that the order is modified by deleting the provision thereof denying that branch of the motion which sought to compel the plaintiff to provide authorizations for the academic records of the plaintiff's siblings, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements. The plaintiff, an infant, allegedly suffered injuries as a result of exposure to lead while residing in premises owned by the defendants. The Supreme Court improvidently exercised its discretion in denying that branch of the defendants' motion which sought to compel the plaintiff to provide authorizations for the academic records of the plaintiff's siblings, since those records are "likely to lead to the discovery of admissible or relevant evidence" (Anderson v. Seigel, 255 A.D.2d 409, 410; see, Andon v. 302-304 Mott St. Assoc., 94 N.Y.2d 740; Salkey v. Mott, 237 A.D.2d 504; Davis v. Elandem Realty Co., 226 A.D.2d 419). However, although the defendants may assert a counterclaim sounding in comparative negligence against the plaintiff's mother, they failed to demonstrate the relevance or materiality of Department of Health records relating to the plaintiff's siblings which concerned a period of time before the plaintiff was born, or premises where the mother never resided.
Defendants have failed to establish that the additional unspecified medical records they seek, relating to treatment received by Ms. Carrasquillo before, during, and after the alleged medical malpractice, would be relevant to their defense of the action. Defendants' speculation that pertinent information may exist in the additional medical records sought is insufficient for this Court to conclude that the motion court exercised its discretion improvidently in denying the motion to compel (see,Salkey v. Mott, 237 A.D.2d 504). Accordingly, since defendants have failed to establish that discovery had been willfully frustrated by plaintiffs, the motion to dismiss the complaint pursuant toCPLR 3126 was properly denied.
Defendants have failed to establish that the additional unspecified medical records they seek, relating to treatment received by Ms. Carrasquillo before, during, and after the alleged medical malpractice, would be relevant to their defense of the action. Defendants' speculation that pertinent information may exist in the additional medical records sought is insufficient for this Court to conclude that the motion court exercised its discretion improvidently in denying the motion to compel (see,Salkey v. Mott, 237 A.D.2d 504). Accordingly, since defendants have failed to establish that discovery had been willfully frustrated by plaintiffs, the motion to dismiss the complaint pursuant toCPLR 3126 was properly denied.
And, while the questions posed and answers provided during an IQ examination may not, in themselves, be of a confidential nature, it is undeniable that the information obtained — an individual's IQ — is a private and highly personal matter. Our conclusion in this case is consistent with Monica W. v. Milevoi ( 252 A.D.2d 260), another case seeking damages as a result of the infant plaintiffs' exposure to lead-based paint, where this Court, inter alia, affirmed so much of an order as denied defendants' motion to direct plaintiff mother to respond to questions concerning the infant plaintiffs' nonparty siblings' academic background and IQ tests. While the Second Department, without any extended discussion, has directed an IQ test of the mother of an infant alleged to have been injured by lead poisoning (see, Salkey v. Mott, 237 A.D.2d 504; Anderson v. Seigel, 255 A.D.2d 409), we decline to follow those cases.
The mere assertion of the appellant that the documents under review were shielded by the attorney-client privilege, or were exempt from disclosure as attorney work product or as material prepared for litigation, did not satisfy its burden of showing that the materials in question were protected from disclosure ( see, e.g., People v. Osorio, 75 N.Y.2d 80; Doe v. Poe, 244 A.D.2d 450, affd 92 N.Y.2d 864). We detect no abuse or improvident exercise of the Supreme Court's broad discretionary powers with regard to discovery matters in directing disclosure of the documents in question ( see, e.g., Hines v. Rap Realty Corp., 254 A.D.2d 330; Salkey v. Mott, 237 A.D.2d 504). The appellant's remaining contentions are without merit.
The authorizations sought in this case as to the academic records of the infant plaintiffs siblings and her mother, also a plaintiff here, the mother's employment records, and the IQ testing of the infant plaintiff's mother, were likely to lead to the discovery of admissible or relevant evidence. Thus, the Supreme Court erred when it denied these requests ( see, CPLR 3101; Davis v. Elandem Realty Co., 226 A.D.2d 419; Wepy v. Shen, 175 A.D.2d 124; Baldwin v. Franklin Gen. Hosp., 151 A.D.2d 532; see also, Salkey v. Mott, 237 A.D.2d 504). However, since there may be some privileged material contained in the academic records, an in camera review by the Supreme Court is warranted prior to the final disclosure thereof ( see, Davis v. Elandem Realty Co., supra).