| Nero v Kendrick |
| 2012 NY Slip Op 07448 [100 AD3d 1383] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| Jaquanda Nero et al., Infants by Their Parent and Natural Guardian,Felicia Nero, Respondents, v Isaac Kendrick et al., Appellants, et al.,Defendant. |
—[*1] Athari & Associates, LLC, Utica (Mo Athari of counsel), for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.),entered December 8, 2011. The order, insofar as appealed from, denied the motion of defendantsIsaac Kendrick and Elizabeth Kendrick for a protective order.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs and the motion is granted.
Memorandum: Isaac Kendrick and Elizabeth Kendrick (defendants), as limited by their brief,appeal from that part of an order that denied their motion for a protective order. Specifically,defendants sought an order "requiring provision of a report by [Jaquanda Nero (plaintiff)]. . . causally relating an injury to plaintiff's ingestion of lead based paint."Defendants also sought an order that would allow them "120 days within which to conduct adefense [medical examination] on behalf of the defendants . . . and serve any suchreports measured from the date of receipt of a report from an expert retained on behalf of theplaintiff detailing any injuries sustained by the plaintiff . . . as a result of elevatedblood lead levels." In denying defendants' motion, Supreme Court concluded that it was notauthorized pursuant to CPLR 3103 to order plaintiff to be examined by an expert. We reverse theorder insofar as appealed from and grant defendants' motion.
Trial courts have broad discretion in supervising disclosure (see Carpenter vBrowning-Ferris Indus., 307 AD2d 713, 715-716 [2003]), and CPLR 3103 (a) affords thecourt the authority to deny, limit, condition or regulate the use of any disclosure device to"prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice toany person or the courts." Here, the protective order sought by defendants was appropriate relief.Defendants had previously sought medical reports from plaintiffs pursuant to 22 NYCRR 202.17and plaintiffs responded to that request, but none of the material provided contained anyinformation concerning any condition, symptom or problem that plaintiff was experiencing as theresult of [*2]elevated blood lead levels, the "physical. . . condition in issue" (Cynthia B. v New Rochelle Hosp. Med. Ctr., 60NY2d 452, 457 [1983]). Indeed, the plaintiff in a personal injury action is under an obligationboth to procure and to produce medical reports relating the claimed injury to the allegationsbeing made in the litigation (see Kelly v Tarnowski, 213 AD2d 1054 [1995]).Furthermore, the court had already issued a scheduling order requiring, inter alia, defendants toconduct a medical examination of plaintiff by a date certain, and we conclude that defendantsshould not be put to the time, expense and effort of arranging for and conducting a medicalexamination of plaintiff without the benefit of reports linking the symptoms or conditions ofplaintiff to defendants' alleged negligence (see Adams v Rizzo, 13 Misc 3d 1235[A],2006 NY Slip Op 52135[U], *47-48 [2006]; see generally Matter of Andrews v TrustcoBank, Natl. Assn., 289 AD2d 910, 912-913 [2001]). Present—Scudder, P.J., Smith,Centra, Lindley and Martoche, JJ.