Summary
In Lamendola, the Third Department found that, unlike the plaintiffs in Mosel, the plaintiffs in the case before it had not identified any "such special and unusual circumstances," and thus their request for permission to videotape the examination of the injured plaintiff was properly denied (148 A.D.2d at 781, 538 N.Y.S.2d 116).
Summary of this case from Bermejo v. N.Y.C. Health & Hosps. Corp.Opinion
March 2, 1989
Appeal from the Supreme Court, St. Lawrence County (Duskas, J.).
Plaintiffs commenced this action for personal injuries and loss of consortium allegedly sustained as a result of a motor vehicle accident. Pursuant to CPLR 3121, defendants served upon plaintiff Gloria Lamendola a notice to submit to a physical and neurological examination concerning the injuries alleged in plaintiffs' complaint. Plaintiffs moved for a protective order permitting them to videotape the physical examination; defendants cross-moved for an order compelling Lamendola to submit to an examination unrestricted by videotaping or the presence of her attorney. Supreme Court denied the motion and granted the cross motion. Plaintiffs appeal.
Turning first to plaintiffs' contention that the entire physical examination should be videotaped, we note the absence of express statutory authority for the videotaping of medical examinations (see, CPLR 3121; 22 NYCRR 202.17). To be contrasted, a companion rule expressly authorizes the videotaping of civil depositions (see, 22 NYCRR 202.15). We conclude that authorization of videotaping was intentionally left out of the rule concerning exchange of medical reports and such intent should be accorded deference (see, McKinney's Cons Laws of NY, Book 1, Statutes § 74). Moreover, in our view, Supreme Court acted within the scope of its broad discretion in denying plaintiffs' motion (see, Plattsburgh Distrib. Co. v. Hudson Val. Wine Co., 108 A.D.2d 1043, 1045; Maggio v. State of New York, 88 A.D.2d 1087, 1088). In Mosel v. Brookhaven Mem. Hosp. ( 134 Misc.2d 73), relied on by plaintiffs, the trial court exercised its discretion to permit the videotaping of the physical examination of a semicomatose, incompetent plaintiff, reasoning that the plaintiff would be unable to either review the examination with his attorney or testify at trial as to the manner in which the examination was conducted (supra, at 75). Here, in the absence of such special and unusual circumstances, we find no basis to disturb Supreme Court's determination.
We reach a different conclusion, however, with respect to defendants' cross motion to compel Lamendola's medical examination in the absence of her attorney. Since there is no indication, as we view the record, that plaintiffs' attorney would interfere with the conduct of the examination, it was an abuse of discretion for Supreme Court to grant the cross motion to the extent it sought to exclude him (see, Ponce v. Health Ins. Plan, 100 A.D.2d 963, 964; Jakubowski v. Lengen, 86 A.D.2d 398, 400-401; 3A Weinstein-Korn-Miller, N Y Civ Prac ¶ 3121.07). It should be noted, however, that the attorney's function is "limited to the protection of the legal interests of his client" and in regard to the "actual physical examination * * * he has no role" (Jakubowski v. Lengen, supra, at 401).
Order modified, on the law, without costs, by reversing so much thereof as compelled plaintiff Gloria Lamendola to submit to a medical examination in the absence of her attorney; cross motion denied to that extent; and, as so modified, affirmed. Kane, J.P., Mikoll, Yesawich, Jr., Mercure and Harvey, JJ., concur.