Dragotta v. Southampton Hospital

295 A.D.2d 557, 744 N.Y.S.2d 863, 2002 N.Y. App. Div. LEXIS 6719

Opinion

—In an action to recover damages for medical malpractice, the defendant Leonard Leonardi appeals from so much of an order of the Supreme Court, Suffolk County (Oliver, J.), dated September 24, 2001, as granted that branch of the plaintiffs’ motion which was to direct the appellant to appear for an examination before trial, and denied his motion for a protective order with respect to the examination before trial.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ motion which was to compel the appellant to submit to an examination before trial, and in denying his cross motion for a protective order (see CPLR 3126; Espinal v City of New York, 264 AD2d 806; Nicoletti v Ozram Transp., 286 AD2d 719; Kubacka v Town of N. Hempstead, 240 AD2d 374, 375; Soto v City of Long Beach, 197 AD2d 615, 616). The conclusory affirmation of the appellant’s psychiatrist in support of the motion was insufficient to establish that the appellant’s health would be endangered if he submitted to an examination before trial. We note that contrary to the appellant’s contention, the Supreme Court did not conditionally strike his answer, but instead, merely directed him to appear for an examination before trial on a certain date. O’Brien, J.P., H. Miller, Schmidt and Cozier, JJ., concur.