Cueto v. Walgreen Eastern Co.

Appellate Division of the Supreme Court of New York

Cueto v. Walgreen Eastern Co.

63 A.D.3d 870, 880 N.Y.S.2d 526

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 16, 2009

StatusPublished

This text of 63 A.D.3d 870 (Cueto v. Walgreen Eastern Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cueto v. Walgreen Eastern Co., 63 A.D.3d 870, 880 N.Y.S.2d 526 (N.Y. Ct. App. 2009).

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Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schack, J.), dated July 25, 2008, which denied their motion to vacate the note of issue and to compel further discovery.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this personal injury action after he allegedly was injured during an altercation with the individual defendants. We agree with the Supreme Court that the defendants are not entitled to conduct a psychiatric examination of the plaintiff. The defendants failed to meet their initial burden of showing that the plaintiffs mental condition is “in controversy” (CPLR 3121; see Dillenbeck v Hess, 73 NY2d 278, 287 [1989]; Koump v Smith, 25 NY2d 287, 291 [1969]; Wilkes v Archibald, 255 AD2d 310 [1998]; Zimmer v Cathedral School of St. Mary. & St. Paul, 204 AD2d 538 [1994]; Sternberger v Offen, 138 AD2d 480 [1988]). Accordingly, the Supreme Court properly denied the defendants’ motion. Spolzino, J.P, Angiolillo, Leventhal and Lott, JJ., concur.

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In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schack, J.), dated July 25, 2008, which denied their motion to vacate the note of issue and to compel further discovery.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this personal injury action after he allegedly was injured during an altercation with the individual defendants. We agree with the Supreme Court that the defendants are not entitled to conduct a psychiatric examination of the plaintiff. The defendants failed to meet their initial burden of showing that the plaintiffs mental condition is “in controversy” (CPLR 3121; see Dillenbeck v Hess, 73 NY2d 278, 287 [1989]; Koump v Smith, 25 NY2d 287, 291 [1969]; Wilkes v Archibald, 255 AD2d 310 [1998]; Zimmer v Cathedral School of St. Mary. & St. Paul, 204 AD2d 538 [1994]; Sternberger v Offen, 138 AD2d 480 [1988]). Accordingly, the Supreme Court properly denied the defendants’ motion. Spolzino, J.P, Angiolillo, Leventhal and Lott, JJ., concur.

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Bluebook (online)

63 A.D.3d 870, 880 N.Y.S.2d 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cueto-v-walgreen-eastern-co-nyappdiv-2009.

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