Rosario v BNS Bldgs., LLC

2009 NY Slip Op 08801 [67 AD3d 984]

November 24, 2009

Appellate Division, Second Department

As corrected through Wednesday, January 6, 2010

Luz Rosario, Respondent, v BNS Buildings, LLC, et al.,Appellants.

—[*1]Dwyer & Brennan, New York, N.Y. (Kevin J. Brennan of counsel), for appellants.

Wingate, Russotti & Shapiro, LLP, Dix Hills, N.Y. (Kenneth J. Halperin and David M.Schwarz, New York, N.Y., of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), enteredMarch 27, 2009, as denied that branch of their motion which was to compel the plaintiff tosubmit to certain medical testing.

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

Under the circumstances, where, inter alia, the plaintiff established that the proposed medicaltesting was potentially dangerous (cf. Lefkowitz v Nassau County Med. Ctr., 94 AD2d18, 21 [1983]), the Supreme Court properly denied that branch of the defendants' motion whichwas to compel her to submit to the proposed testing (see Santero v Kotwal, 4 AD3d 464, 465 [2004]; Bobka vMann, 308 AD2d 497, 498 [2003]; Marino v Pena, 211 AD2d 668, 668-669 [1995]).Skelos, J.P., Covello, Santucci, Chambers and Austin, JJ., concur.