Hedgepeth v. Union Baptist Church of Brooklyn, Inc.

102 A.D.3d 654, 956 N.Y.S.2d 904

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Fartnow, J.), dated January 31, 2012, which denied its motion to compel the plaintiff to submit to X-ray testing of his left distal humerus and right distal humerus in connection with a physical examination.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion to compel the plaintiff to submit to X-ray testing of his left distal humerus and right distal humerus in connection with a physical examination is granted.

Where, as here, a plaintiff has put his or her physical condition at issue and displays symptoms that simultaneously are serious, complex, and perplexing, he or she may be compelled to undergo additional objective testing procedures that are safe, painless, and noninvasive (see Bobka v Mann, 308 AD2d 497, 498 [2003]; Thomas v Mather Mem. Hosp., 162 AD2d 521 [1990]; Lapera v Shafron, 159 AD2d 614, 614-615 [1990]), including X-ray testing (see Tidwell v Villaman, 100 AD3d 865 [2012]; Louis v Cohen, 221 AD2d 509 [1995]; Healy v Deepdale Gen. Hosp., 145 AD2d 413 [1988]). In opposition to the defendant’s showing that X-ray testing would assist it in ascertaining the nature and extent of the injuries claimed, the plaintiff failed to establish that X-ray testing of his left and right distal humeri would be dangerous or harmful (see Tidwell v Villaman, 100 AD3d at 865; Healy v Deepdale Gen. Hosp., 145 AD2d at 413; Captain v Kobak, 95 AD2d 766 [1983]; Castrillon v City of New York, 91 AD2d 986 [1983]). Accordingly, the defendant’s motion to compel the plaintiff to submit to X-ray testing of his left distal humerus and right distal humerus in connection with a physical examination by its examining physician should have been granted. Dillon, J.P., Hall, Roman and Cohen, JJ., concur.