| Peculic v Sawicki |
| 2015 NY Slip Op 05168 [129 AD3d 930] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| Lina Peculic, Respondent, v Elzbieta Sawickiet al., Appellants. |
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Cahill and Andrea E.Ferrucci of counsel), for appellants.
Elefterakis, Elefterakis & Panek, New York, N.Y. (Donald D. Brown, Jr., ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Queens County (Pineda-Kirwan, J.), dated January 13, 2014,which denied their motion pursuant to CPLR 3124 to compel the plaintiff to submit tothe administration of the Minnesota Multiphasic Personality Inventory-2, and granted theplaintiff's cross motion pursuant to CPLR 3103 (a) for a protective order.
Ordered that the order is reversed, on the law, with costs, the defendants' motionpursuant to CPLR 3124 to compel the plaintiff to submit to the administration of theMinnesota Multiphasic Personality Inventory-2 is granted, and the plaintiff's crossmotion pursuant to CPLR 3103 (a) for a protective order is denied.
On the eve of the trial in this action to recover damages for personal injuriesallegedly sustained in an automobile accident, the plaintiff served a bill of particularsdenominated as a second supplemental bill of particulars, adding post-traumatic stressdisorder as an injury allegedly caused by the accident. The parties entered into astipulation pursuant to which the trial was adjourned and the plaintiff agreed to providediscovery, including submitting to an independent medical examination, with respect tothe newly alleged injury. However, the plaintiff thereafter refused the defendants'demand that she submit to the administration of the Minnesota Multiphasic PersonalityInventory-2 (hereinafter MMPI-2) as part of the independent medical examination.
The defendants moved to compel the plaintiff to submit to the MMPI-2, and theplaintiff cross-moved for a protective order. The Supreme Court denied the defendants'motion and granted the plaintiff's cross motion.
The question of whether a discovery demand is appropriate "is left to the sounddiscretion of the trial court" (Young v Tierney, 271 AD2d 603 [2000]). However,the Appellate Division is vested with a corresponding power to substitute its owndiscretion for that of the trial court (see Andon v 302-304 Mott St. Assoc., 94NY2d 740, 745 [2000]; Brady v Ottaway Newspapers, 63 NY2d 1031, 1032[1984]; Phoenix Mut. Life Ins. Co. v Conway, 11 NY2d 367, 370[1962]).
[*2] Where the mental or physicalcondition of a party is in controversy, the party may be required to submit to a medicalexamination (see Dillenbeck v Hess, 73 NY2d 278, 286-287 [1989]; D'Adamo v Saint Dominic'sHome, 87 AD3d 966, 970 [2011]). However, a plaintiff who places his or herphysical or mental condition in controversy will not be required to undergo anexamination or objective testing procedure which is invasive, painful, or presents thepossibility of danger to life or health (see D'Adamo v Saint Dominic's Home, 87AD3d at 970; Lefkowitz v Nassau County Med. Ctr., 94 AD2d 18, 21[1983]).
Here, it is undisputed that the plaintiff's mental condition was put into controversy byher service of the bill of particulars denominated a second supplemental bill ofparticulars, in which she alleged that she has post-traumatic stress disorder that wascaused by the accident. In support of their motion, the defendants established, throughthe affidavit of a psychologist, that the MMPI-2 is a conventionally accepted noninvasivetest utilized for the assessment of a diagnosis of post-traumatic stress disorder.
In opposition, the plaintiff failed to establish that subjecting herself to the MMPI-2would be invasive or harmful to her health (see Tidwell v Villaman, 100 AD3d 865, 866 [2012];Thomas v Mather Mem. Hosp., 162 AD2d 521, 523 [1990]). Accordingly, thedefendants' motion to compel should have been granted and the plaintiff's cross motionfor a protective order should have been denied. Dillon, J.P., Dickerson, Roman andLaSalle, JJ., concur.