Flores v Vescera

2013 NY Slip Op 02866 [105 AD3d 1340]

April 26, 2013

Appellate Division, Fourth Department

As corrected through Wednesday, May 29, 2013

Amanda Flores, Respondent-Appellant, v Francis X.Vescera, Respondent, and Christopher Vescera,Appellant-Respondent.

—[*1]Greene, Hershdorfer & Sharpe, Syracuse (Sherry R. Bruce of counsel), fordefendant-appellant-respondent.

Athari & Associates, LLC, Utica (Nicole C. Pelletier of counsel), forplaintiff-respondent-appellant.

Appeal and cross appeal from an order of the Supreme Court, Oneida County(Samuel D. Hester, J.), entered March 23, 2012. The order, among other things, deniedthe motion of plaintiff for a protective order and denied in part the cross motion ofdefendant Christopher Vescera for a protective order.

It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.

Memorandum: Christopher Vescera (defendant) appeals and plaintiff cross-appealsfrom an order denying plaintiff's motion for a protective order permitting her tovideotape a neuropsychological evaluation (NPE) using a one-way mirror, and denyingthat part of defendant's cross motion to preclude plaintiff's counsel or otherrepresentative from attending the NPE. With respect to plaintiff's motion, we note thatthere is no express statutory authority to videotape medical examinations (seeCPLR 3121; 22 NYCRR 202.17; Lamendola v Slocum, 148 AD2d 781, 781[1989], lv dismissed 74 NY2d 714 [1989]), and videotaping has not beenallowed in the absence of "special and unusual circumstances" (Lamendola, 148AD2d at 781). We conclude that plaintiff failed to establish the requisite special andunusual circumstances (cf. Mosel v Brookhaven Mem. Hosp., 134 Misc 2d 73[1986]). With respect to defendant's cross motion, we conclude that Supreme Courtproperly determined that defendant failed to make the requisite positive showing ofnecessity for the exclusion of plaintiff's counsel or other representative from attendingthe NPE by establishing that the presence of such an individual would impair the validityand effectiveness of the NPE (see Jessica H. v Spagnolo, 41 AD3d 1261, 1262-1263[2007]). Present—Scudder, P.J., Centra, Lindley, Sconiers and Martoche, JJ.