Andon v. 302-304 Mott Street Associates

258 A.D.2d 37, 690 N.Y.S.2d 241
Appellate Division of the Supreme Court of the State of New York·Decided May 20, 1999·Published·Cited by 54 cases

Opinion

OPINION OF THE COURT

Sullivan, J.

Plaintiff Prudencia Andón commenced this action on behalf of herself and her son Antonio to recover for personal injuries sustained by Antonio as a result of exposure to lead-based paint. The injuries allegedly suffered by the infant plaintiff include learning disability, developmental delays in speech and language, emotional behavior problems and communication skills that are below age level. The issue on this appeal is whether the IAS Court erred in granting defendants’ motion to compel an IQ examination of the infant plaintiffs mother.

In support of the motion, defendants relied on the affidavit of an expert, Andrew R. Adesman, M.D., Chief of the Division of Developmental and Behavioral Pediatrics, Department of Pediatrics, at Schneider Children’s Hospital in New Hyde Park, New York. Dr. Adesman, board certified in pediatrics, stated that he had training and experience in evaluating neurological and developmental delays in children, including interpretation of intelligence tests and determining whether a child is performing to his potential and whether a child’s performance has been affected by external environmental sources, including lead. According to Dr. Adesman, exposure to lead is only one of many risk factors for childhood delays such as those claimed to be experienced by the infant plaintiff. In addition, Dr. Adesman states that there are no types of developmental deficits that are specific for lead exposure and that cannot be caused by other factors. Therefore, concluded Dr. Adesman, it is difficult to evaluate properly the causes of plaintiffs problems

“without the careful examination of known significant risk factors for such impairments, including genetic factors. * * *

“Studies that have examined the impact of risk factors on childhood intellectual and cognitive development have concluded that a child’s genetic background is a strong predictor of educational performance. Maternal IQ is particularly significant in that it reflects the biological endowment of the child and the intellectual stimulation available in the home. Hence, [39]*39information regarding maternal I.Q. is extremely relevant to the assessment of whether a child is performing according to his or her potential, whether or not a child is, in fact, truly ‘delayed’ and in helping to determining [szc] causes of any developmental deficits. * * *

“To assess whether results of [the tests conducted on the infant plaintiff] reflect [his] potential IQ in the absence of lead exposure, it will be extremely helpful to compare the results of these IQ tests with the result of an IQ test administered to [his mother]. In this way, it can be determined whether [the infant plaintiff! is performing as would be expected. * * *

“In short, the injuries claimed by the [infant] Plaintiff can be due in whole or in part to risk factors other than exposure to lead.”

In opposition, plaintiffs asserted that defendants showed only a “hypothetical relevance” of the mother’s IQ to the question of whether the infant plaintiff’s cognitive deficits and emotional behavior problems are causally related to his ingestion of lead-based paint. Plaintiffs urged that the hypothetical possibility that the mother’s IQ will suggest some other cause of the infant plaintiff’s condition does not amount to a factual demonstration of relevance. The IAS Court, without setting forth the basis of its decision, granted the motion to compel an IQ test of the mother, stating that the admissibility of the test should be determined at the time of trial. We reverse.

In moving to compel an IQ examination of the mother, defendants did not identify any specific provision of the Civil Practice Law and Rules as authority for the relief requested. CPLR 3121 (a), which provides, “After commencement of an action in which the mental or physical condition * * * of a party * * * is in controversy, any party may serve notice on another party to submit to a physical [or] mental * * * examination by a designated physician,”

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Andon v. 302-304 Mott Street Associates, 258 A.D.2d 37, 690 N.Y.S.2d 241 (N.Y. Ct. App. 1999).

258 A.D.2d 37 (Andon v. 302-304 Mott Street Associates) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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