| Tidwell v Villaman |
| 2012 NY Slip Op 07984 [100 AD3d 865] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Eric Tidwell, Respondent , v Jonathan Villaman et al.,Defendants, and Serge A. Zaytounalian et al., Appellants. |
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In an action to recover damages for personal injuries, the defendants Serge A. Zaytounalian,G.E. Auto Repair Enterprises, Inc., and L&B Auto Repair II Corp., appeal from so much of anorder of the Supreme Court, Kings County (Jacobson, J.), dated December 13, 2011, as deniedthat branch of their motion which was to compel the plaintiff to submit to X-ray testing of hisright femur in connection with a physical examination.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendants Serge A. Zaytounalian, G.E. Auto Repair Enterprises,Inc., and L&B Auto Repair II Corp., which was to compel the plaintiff to submit to X-ray testingof his right femur in connection with a physical examination is granted.
Where, as here, a plaintiff has put his or her physical condition in issue and displayssymptoms that simultaneously are serious, complex, and perplexing, he or she may be compelledto undergo additional objective testing procedures that are safe, painless, and noninvasive(see Bobka v Mann, 308 AD2d 497, 498 [2003]; Thomas v Mather Mem. Hosp.,162 AD2d 521 [1990]; Lapera v Shafron, 159 AD2d 614, 614-615 [1990]), includingX-ray testing (see Louis v Cohen, 221 AD2d 509 [1995]; Healy v Deepdale Gen.Hosp., 145 AD2d 413 [1988]; Captain v Kobak, 95 AD2d 766 [1983]; Castrillonv City of New York, 91 AD2d 986 [1983]). In opposition to the appellants' showing thatX-ray testing would assist them in ascertaining the nature and extent of the injuries claimed, theplaintiff failed to establish that X-ray testing of his right femur would be dangerous or harmful(see Healy v Deepdale Gen. Hosp., 145 AD2d 413 [1988]; Captain v Kobak, 95AD2d 766 [1983]; Castrillon v City of New York, 91 AD2d 986 [1983]). Accordingly,that branch of the appellants' motion which was to compel the plaintiff to submit to X-ray testingof his right femur, in connection with a physical examination by their examining physician,should have been granted. Mastro, J.P., Skelos, Chambers and Sgroi, JJ., concur.