Opinion
2012-10-17
Patricia DITROIA, et al., appellants, v. Stephanie BUCK–HASKIN, respondent.
Jonah Grossman, Jamaica, N.Y. (Lawrence B. Lame of counsel), for appellants. Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka of counsel), for respondent.
Jonah Grossman, Jamaica, N.Y. (Lawrence B. Lame of counsel), for appellants. Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated April 20, 2011, which denied their motion to restore the case to the trial calendar, with leave to renew, inter alia, upon the completion of urodynamic testing of the plaintiff Patricia DiTroia.
ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion to restore the case to the trial calendar is granted.
Although a defendant is entitled to conduct a physical examination of a plaintiff who puts his or her physical condition at issue in an action ( seeCPLR 3121[a]; D'Adamo v. Saint Dominic's Home, 87 A.D.3d 966, 970, 929 N.Y.S.2d 301), a plaintiff may not be compelled to undergo medical testing procedures when it is established that the tests are invasive, painful, and harmful to the plaintiff's health ( see D'Adamo v. Saint Dominic's Home, 87 A.D.3d at 970, 929 N.Y.S.2d 301;Rosario v. BNS Bldgs., LLC, 67 A.D.3d 984, 888 N.Y.S.2d 754;Bobka v. Mann, 308 A.D.2d 497, 498, 764 N.Y.S.2d 847;Lapera v. Shafron, 159 A.D.2d 614, 552 N.Y.S.2d 668). Here, the plaintiffs established that the urodynamic testing sought by the defendant is painful, invasive, and would be potentially harmful to the injured plaintiff's health ( see Santero v. Kotwal, 4 A.D.3d 464, 465, 772 N.Y.S.2d 342; Bobka v. Mann, 308 A.D.2d at 498, 764 N.Y.S.2d 847;Marino v. Pena, 211 A.D.2d 668, 622 N.Y.S.2d 63). Under these circumstances, the injured plaintiff, who has already been examined by the defendant's medical expert, should not be compelled to additionally undergo urodynamic testing in order to restore this case to the trial calendar.