Clark v. Allen & Overy, LLP

125 A.D.3d 497, 4 N.Y.S.3d 20

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 2015
• Docket: 106717/11
• Status: Published

Opinion

Order, Supreme Court, New York County (Louis B. York, J.), entered July 28, 2014, which granted defendant law firm’s motion to compel plaintiff to submit to a mental examination, unanimously affirmed, without costs.

Following the termination of her employment as a senior attorney in defendant’s Moscow office, plaintiff commenced this action asserting causes of action for, among other things, sexual harassment, retaliatory discharge, and intentional infliction of emotional distress. She alleges that defendant caused her to suffer “extreme mental and physical anguish” and “severe anxiety,” and seeks to recover $15 million for emotional distress damages. Although plaintiff denies that defendant’s actions caused any diagnosed psychiatric condition and does not anticipate presenting an expert in support of her emotional distress claims, she testified at her deposition that her emotional distress has included experiencing eczema all over her body, hair pulling, anxiety, depression and suicidal feelings. Under these circumstances, the court providently exercised its discretion in determining that defendant had demonstrated that plaintiff had placed her mental condition “in controversy” by alleging unusually severe emotional distress, so that a mental examination by a psychiatrist is warranted to enable defendant to rebut her emotional distress claims (CPLR 3121 [a]; see Spierer v Bloomingdale’s, 37 AD3d 371 [1st Dept 2007]). Although plaintiff asserts that an examination would be unduly intrusive into private matters, she did not propose conditions or seek a protective order limiting the scope or extent of the examination (see Matter of Carrier Corp. v New York State Div. of Human Rights, 224 AD2d 936 [4th Dept 1996]).

Concur— Gonzalez, P.J., Acosta, Saxe, Manzanet-Daniels and Clark, JJ.