Bradley v. Fisher Associates

251 A.D.2d 440, 674 N.Y.S.2d 405, 1998 N.Y. App. Div. LEXIS 6885

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated September 9, 1997, as denied those branches of their cross motion which were to compel the plaintiff to submit to a physical examination by their expert, a physician who is a vocational rehabilitation specialist, and to provide authorizations for records relating to her prior employment at Brookdale Hospital.

Ordered that the order is modified by deleting the provision thereof denying that branch of the defendants’ cross motion which was to compel the plaintiff to submit to a physical examination by the defendants’ expert, a physician who is a vocational rehabilitation specialist, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendants.

Under the circumstances of this case, where the plaintiff engaged her own nonphysician vocational rehabilitation expert in preparation for such expert testimony at trial, the Supreme Court improvidently exercised its discretion in denying that branch of the defendants’ cross motion which was to compel the plaintiff to submit to a physical examination by a physician who is a vocational rehabilitation specialist (see, CPLR 3101; Diviesti v Sudds, 249 AD2d 503).

The defendants’ remaining contention is without merit. Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur.