Miller v. Lamberti

20 Misc. 2d 630, 193 N.Y.S.2d 929, 1958 N.Y. Misc. LEXIS 2626

Opinion

Frank Del Vecchio, J.

This is an application on notice for an order to examine Dr. Thomas Gr. Lamberti and Bosalind Rogers Bodi pursuant to section 295 of the Civil Practice Act.

The moving papers state that the present request is for the purpose of commencing an action against proper defendants, as a result of injuries sustained by the applicant while a patient under the care and treatment of Dr. Lamberti, and also that it is for the purpose of enabling her to frame her complaint.

The law seems to be well settled that applications of this type are granted for the purpose of determining against whom an action should be brought. (Lauffer v. Eastern Star Temple, 210 App. Div. 619; Matter of Weiss [Mount Sinai Hosp.], 208 Misc. 1010.)

There also seems to be good authority holding that an examination to enable the applicant to frame a complaint may not be had before commencement of the action by service of a summons. (Matter of Cohen [Stewart], 179 Misc. 6, affd. 265 App. Div. 1029.)

Although it is better practice to have the applicant, instead of her attorney, make the affidavit setting forth the reasons for the examination, this court is of the opinion that the present application sufficiently shows that the attorney believes she has a meritorious cause of action and that the circumstances render it necesary for the protection of the applicant’s rights to examine Dr. Lamberti and Bodi for the purpose of determining against whom the action may be brought. (Broome v. Perlman, 178 Misc. 873; Matter of Titanium Alloy Mfg. Co., 198 N. Y. S. 503.)

Accordingly, the application to examine Dr. Lamberti and Bodi to determine against whom an action is to be brought is granted; the examination to frame the complaint is denied.

Prepare order.