Baum v. Nussenbaum

19 Misc. 2d 474, 191 N.Y.S.2d 227, 1958 N.Y. Misc. LEXIS 2394

• Court: New York Supreme Court
• Decided: November 7, 1958
• Status: Published

Opinion

Joseph M. Conroy, J.

Motion by plaintiff for a discovery and inspection of the records and report of a physical examination made of the plaintiff by the defendant’s doctor. The physical examination was had on plaintiff’s consent and without the necessity for a court order.

In this Department, it has long been the custom to require a copy of the doctor’s report to be furnished to the party examined where the examination was made pursuant to a court order (Di Salvo v. Di Giacomo, 2 Misc 2d 1068), but not when the examination was granted voluntarily (Andrews v. Ghikas, 278 App. Div. 658). More recently, however, there has been a trend toward full disclosure of each side’s case with a view to preventing surprise and expediting the trial. (Del Ra v. Vaughan, 2 A D 2d 156; Wilhelm v. Abel, 1 A D 2d 55.) In line with this change of policy, there appears to be no reason for penalizing a plaintiff who consents to an examination without putting his adversary to the trouble of making a motion therefor (Martin v. La Fonte, 53 N. Y. S. 2d 415), and this policy has recently been adopted even in the First Department which formerly did not require service of a copy of the report on the party examined (Totoritus v. Stefan, 10 Misc 2d 881, affd. 6 A D 2d 123).

The motion is accordingly granted.

Submit order.