Opinion
November 23, 1959
Albert J. Gennarelli for plaintiffs.
Dwyer Lawler for Elvira Costa, defendant.
Lewis Lyons for Frank Niosi, defendant.
With respect to plaintiffs' motion to strike the answer of defendant Niosi, since the transcript of that defendant's examination before trial has been delivered, the application is moot and accordingly denied.
Plaintiffs' motion for an order directing the defendant to furnish them with a copy of the report of Dr. Gould is granted.
Defendant Niosi has served a formal cross motion for discovery and inspection of the X ray of plaintiff's skull and of the reports of plaintiff's treating physician. Such is available to defendant under the provisions of the Civil Practice Act relating to discovery and inspection. The case of Baum v. Nussenbaum ( 7 A.D.2d 991) is no bar to the granting of the relief sought. There no formal motion for discovery and inspection was made by defendant. The request that the granting of plaintiffs' motion be conditioned on the furnishing of a copy of the report of plaintiff's treating physician appeared in the affidavit submitted in opposition to plaintiffs' motion. While it would appear expeditious and practical to avoid the unnecessary expense and effort attendant upon the making of a cross motion as is the rule in the Third Department ( Rooney v. Colson, 3 A.D.2d 410), this court is constrained to adhere to the rule laid down in the Baum case until a contrary course is indicated by the Appellate Division of this Department.
Plaintiff is also directed to submit the X ray of her skull or serve a statement on defendant to the effect that it is negative. If it is claimed by plaintiff that there are positive findings, and the X-ray plate and report are delivered to defendant, the latter is directed to serve on plaintiffs a copy of the report of the physician examining the X ray on behalf of the defendant.
Settle order on notice.