Bergen v. Long Island City Savings & Loan Ass'n

20 Misc. 2d 9, 191 N.Y.S.2d 39, 1958 N.Y. Misc. LEXIS 2061

• Court: New York Supreme Court
• Decided: December 31, 1958
• Status: Published

Opinion

Mario Pittoni, J.

Plaintiff’s motion for an order requiring the defendant to produce for discovery and inspection a certain report of a physical examination of the plaintiff made by the defendant’s physician, and voluntarily allowed by the plaintiff, is granted. In accordance with the plaintiff’s offer, he shall furnish to the defendant’s attorneys a copy of the physician’s affidavit which was used for the rule 9 preference.

The defendant’s countermotion is denied. There is a difference between a plaintiff’s voluntarily submitting to examination by the adversary’s physician and an examination by his own physician. In the first case, such a report should be made available to the party who voluntarily submits to adversary examination. What the defendant now wants is discovery and inspection of the plaintiff’s nonadversary trial preparation. Courts have not yet reached that point where each party must make available its preparation files to the adversary.

Submit orders.