Cramer v. Toledo Scale Co.

89 A.D.2d 1059, 454 N.Y.S.2d 561, 1982 N.Y. App. Div. LEXIS 18360

Opinion

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Literally interpreted, Special Term’s order directing plaintiff to furnish defendants with physicians’ reports is overly broad. Defendants acknowledge that they seek reports only from physicians “who treated the plaintiff for injuries claimed to be related to this accident.” The parties also acknowledge that the order appealed from should not be read to require disclosure of “any opinion of an expert prepared for litigation” (CPLR 3101, subd [d], par 1). The order should be modified to provide that plaintiff be directed to furnish to defendants’ counsel within 30 days after service of a copy of the order herein copies of reports of all physicians who have rendered care and treatment to the infant plaintiff in connection with the injuries for which recovery is sought and who may be called to testify on his behalf. Plaintiff’s counsel also argues that he should not be required to disclose reports which have not yet been furnished to him by attending physicians. It is noted, however, that the burden is on plaintiff to procure and disclose the reports in a timely manner and the failure to do so may result in the preclusion of evidence at trial (cf. Wonsch v Snyder, 53 AD2d 1031; 22 NYCRR 1024.25 [g]). (Appeal from order of Supreme Court, Niagara County, Marshall, J. — discovery.) Present — Dillon, P. J., Callahan, Doerr, Denman and Moule, JJ.