Ducharme v. Freihofer Baking Co.

9 A.D.2d 581, 189 N.Y.S.2d 525, 1959 N.Y. App. Div. LEXIS 7442

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 13, 1959
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term entered in Greene County, which granted plaintiff’s motion to take the testimony of plaintiff’s physicians at Montreal, Canada, upon plaintiff’s written interrogatories and defendants’ cross interrogatories. The action is in negligence to recover for personal injuries sustained as the result of an automobile accident. Plaintiff claims to have sustained numerous permanent injuries, including damage to the brain and to the nervous system. One of the two physicians sought to be examined is a neurosurgeon. From the original and supplemental bills of particulars the conclusion is inescapable that the proof of many of the serious injuries asserted will be of a highly technical and complex nature and could not, in justice to any of the parties, be effectively elicited from the doctors named or tested by cross-examination otherwise than upon oral examination. This situation was fairly shown by the affidavit read in opposition to the motion and required that an oral examination be directed. (Cf. Bennett v. Kelly, 283 App. Div. 945.) We perceive no reason to disturb the exercise of the Special Term’s discretion in declining to impose the additional conditions suggested. Order modified so as to delete the provisions thereof as to written interrogatories and to provide that the testimony of the physicians therein named be taken by deposition upon oral examination before a competent person to be named in said order, upon 20 days’ notice to defendants’ attorneys, and, as so modified, affirmed, without costs. Settle order. Coon, J. P., Gibson, Herlihy and Reynolds, JJ., concur.