Pink v. Valentine

10 A.D.2d 583, 195 N.Y.S.2d 956, 1960 N.Y. App. Div. LEXIS 12075

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1960
• Status: Published

Opinion

In an action to recover damages for personal injuries, the appeal is from an order granting respondent’s motion pursuant to section 306 of the Civil Practice Act for a physical examination of appellant to be conducted by a physician “ designated by the court ”, who was the same physician designated by respondent. The order also provides that such examination be conducted at the designated physician’s office in Nassau County and that appellant may request and receive a copy of the report of such examination and upon such request and delivery the respondent may request and receive the report of appellant’s physician. Order reversed, with $10 costs and disbursements, and motion remitted to the Special Term for further proceedings not inconsistent herewith. The granting of the motion for a physical examination of appellant was proper. It was, however, improper for the court to designate a physician who was respondent’s nominee, in view of appellant’s objection to the examination by that physician in Nassau County. (Ponzi v. City of New York, 269 App. Div. 949; Bloom v. Brooklyn & Queens Tr. Corp., 151 Misc. 136; Goldenberg v. Zirinsky, 114 App. Div. 827.) It was likewise improper for the court to condition the receipt by appellant of a copy of the report of appellant’s physical examination by the physician designated by the court upon appellant’s furnishing a copy of the report of his own physician. (Baum v. Nussenbaum, 7 A D 2d 991; Mansoor v. Simon, 5 A D 2d 845.) Nolan, P. J., Beldoek, Christ, Pette and Brennan, JJ., concur.