Alder v. New York City Housing Authority

270 A.D.2d 157, 704 N.Y.S.2d 584, 2000 N.Y. App. Div. LEXIS 3059

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 2000
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Barry Salman, J.), entered December 23, 1998, which, to the extent appealed from, denied defendant’s cross-motion for an order compelling the infant plaintiff to submit to x-ray examinations of both of his tibias, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the plaintiffs precluded from offering evidence at the trial of this action with regard to any residual effects of the injuries suffered by the infant plaintiff unless he submits to such examination within 30 days of service of this order with notice of entry.

The infant allegedly suffered a spiral fracture of his right tibia on August 6, 1992, at the age of three when a banister fell on him. According to plaintiffs, the infant, who is now 11 years old, suffers residual effects from the accident. Plaintiffs claim that not only are these residual injuries permanent, but that they will become progressively worse in the future. Under these circumstances, defendant demonstrated its entitlement to current x-rays of the infant’s tibias (CPLR 3121 [a]; Castrillon v City of New York, 91 AD2d 986; Feinberg v Fairmont Holding Corp., 272 App Div 101). Concur — Rosenberger, J. P., Wallach, Andrias and Friedman, JJ.