| Cooper v McInnes |
| 2013 NY Slip Op 08322 [112 AD3d 1120] |
| December 12, 2013 |
| Appellate Division, Third Department |
| Frederick Cooper et al., Appellants, v TerryMcInnes et al., Respondents. |
—[*1] Knych & Whritenour, LLC, Syracuse (Brendan J. Reagan of counsel) and LawOffices of Epstein, Gialleonardo & Hartford, Getzville (Jennifer Schiffmacher ofcounsel), for respondents.
Lahtinen, J. Appeal from an order of the Supreme Court (O'Shea, J.), enteredFebruary 14, 2013 in Chemung County, which, among other things, denied plaintiffs'motion for a protective order.
Plaintiffs commenced this negligence action alleging various injuries caused byexposure to lead paint when they were children residing in apartment buildings managedor owned by defendants. Defendants served a notice to have plaintiffs examined bypsychologist Thomas Griffiths. Plaintiffs moved for a protective order disqualifyingGriffiths as the examiner or, alternatively, precluding Griffiths from asking questionsregarding "socioeconomics, eugenic[s] or euthenics" and permitting videotaping of theexamination. Defendants cross-moved to preclude videotaping or observation of theexamination by counsel. Supreme Court denied plaintiffs' motion and partially granteddefendants' cross motion. The court, among other things, determined that plaintiffs couldhave counsel or a representative present during the examination provided that suchperson remained five feet behind the person being examined and "not use a computer,cell phone or other electronic device during the evaluation, and . . . notrecord the evaluation or speak with . . . Griffiths or anyone else during theevaluation." Plaintiffs appeal.
We affirm. " '[The] trial court has broad discretionary power in controlling discoveryand disclosure' " (Matter ofScaccia, 66 AD3d 1247, 1249 [2009], quoting Allen v Krna, 282 [*2]AD2d 946, 947 [2001]). "Although we can substitute ourdiscretion for that of the trial court regarding disclosure, we typically limit our review towhether the trial court clearly abused its discretion" (Herbenson v Carrols Corp., 101 AD3d 1220, 1221 [2012][citations omitted]). While plaintiffs' counsel has dealt with Griffiths in previous casesand does not agree with his approach in lead exposure cases, nonetheless the record doesnot reflect a level of biased or unabashed antipathy by Griffiths such that it constituted anabuse of discretion for Supreme Court to permit defendants to use this expert (see Lewis v John, 87 AD3d564, 565-566 [2011]; Noteboom v Shugrue, 306 AD2d 453, 453 [2003];cf. Pettway v Ogbonna, 261 AD2d 700, 700 [1999]). Nor are we persuaded thatSupreme Court erred in denying plaintiffs' request that Griffiths be precluded frominquiring about plaintiffs' family history as part of his examination (see Derr v Fleming, 106 AD3d1240, 1243 [2013]; Cunningham v Anderson, 85 AD3d 1370, 1374-1375[2011], lv dismissed and denied 17 NY3d 948 [2011]). Finally, Supreme Courtacted well within its discretion in prohibiting video or audio recording of thepsychological examinations since plaintiffs failed to establish sufficient special orunusual circumstances justifying such recording (see Flores v Vescera, 105 AD3d 1340, 1340 [2013];Lamendola v Slocum, 148 AD2d 781, 781 [1989], lv dismissed 74 NY2d714 [1989]).
Peters, P.J., Rose and Garry, JJ., concur. Ordered that the order is affirmed, with onebill of costs.