Marino v. Pena

211 A.D.2d 668, 622 N.Y.S.2d 63, 1995 N.Y. App. Div. LEXIS 310

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 1995
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the defendants appeal from so much of an order of the Supreme Court, Queens County (Leviss, J.), dated November 29, 1993, as denied their motion to compel the plaintiff to submit to an examination by urethral calibration.

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

Contrary to the defendants’ contentions, we find that the Supreme Court did not improvidently exercise its discretion in denying the defendants’ motion to compel the plaintiff to submit to an examination by urethral calibration. The plaintiff, Laura Marino, demonstrated that this procedure is potentially dangerous to her because there is a risk of infection and a risk of aggravating or increasing the urethral stricture that the plaintiff already suffers from due to the alleged medical malpractice (see generally, Lefkowitz v Nassau County Med. Ctr., 94 AD2d 18, 21; Langelier v Ford, 159 AD2d 851, 852). In response, the defendants failed to refute the evidence that the test would be harmful (cf., Thomas v Mather Mem. Hosp., 162 AD2d 521). Accordingly, the court properly denied the defendants’ motion. Bracken, J. P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.