| Rinaldi v Evenflo Co., Inc. |
| 2009 NY Slip Op 04044 [62 AD3d 856] |
| May 19, 2009 |
| Appellate Division, Second Department |
| Angelina Rinaldi et al., Respondents, v Evenflo Company,Inc., et al., Appellants, et al., Defendant. |
—[*1] Christopher P. DiGiulo, P.C., New York, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants Evenflo Company,Inc., and Toys "R" Us appeal, as limited by their brief, from so much of an order of the SupremeCourt, Queens County (Agate, J.), dated July 2, 2008, as denied the cross motion of thedefendant Evenflo Company, Inc., to compel the five-year-old infant plaintiff Eternity Alvaradoto appear for a further independent medical examination to be conducted without the presence ofher mother and natural guardian, the plaintiff Angelina Rinaldi.
Ordered that the appeal by the defendant Toys "R" Us is dismissed, as that defendant is notaggrieved by the order appealed from (see CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as appealed from by the defendant EvenfloCompany, Inc.; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
Contrary to the contentions of the defendant Evenflo Company, Inc. (hereinafter thedefendant), the Supreme Court did not improvidently exercise its discretion in denying its crossmotion to compel the five-year-old infant plaintiff to undergo a second independent medical[*2]examination. "The supervision of disclosure and the settingof reasonable terms and conditions therefor rests within the sound discretion of the trial court(see Matter of U.S. Pioneer Elec. Corp. [Nikko Elec. Corp.], 47 NY2d 914, 916) and,absent an improvident exercise of that discretion, its determination will not be disturbed"(Mattocks v White Motor Corp., 258 AD2d 628, 629 [1999]; see Kaplan vHerbstein, 175 AD2d 200 [1991]). While there is no restriction in CPLR 3121 limiting thenumber of examinations to which a party may be subjected, a party seeking a furtherexamination must demonstrate the necessity for it (see Young v Kalow, 214 AD2d 559[1995]; Huggins v New York City Tr. Auth., 225 AD2d 732 [1996]). The affidavit of thedefendant's medical expert submitted in support of the cross motion was too vague andconclusory to warrant subjecting the infant plaintiff to a second examination. Skelos, J.P., Florio,Balkin, Belen and Austin, JJ., concur.