Cueto v Walgreen E. Co., Inc.

Cueto v Walgreen E. Co., Inc. 2009 NY Slip Op 05079 [63 AD3d 870] June 16, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2009

Luis Cueto, Respondent,
v
Walgreen Eastern Co., Inc., et al., Appellants.

—[*1] Gruvman, Giordano & Glaws, LLP, New York, N.Y. (Charles T. Glaws of counsel), for appellants.

Trolman, Glaser & Lichtman, P.C., New York, N.Y. (Michael T. Altman of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schack, J.), dated July 25, 2008, which denied their motion to vacate the note of issue and to compel further discovery.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this personal injury action after he allegedly was injured during an altercation with the individual defendants. We agree with the Supreme Court that the defendants are not entitled to conduct a psychiatric examination of the plaintiff. The defendants failed to meet their initial burden of showing that the plaintiff's mental condition is "in controversy" (CPLR 3121; see Dillenbeck v Hess, 73 NY2d 278, 287 [1989]; Koump v Smith, 25 NY2d 287, 291 [1969]; Wilkes v Archibald, 255 AD2d 310 [1998]; Zimmer v Cathedral School of St. Mary & St. Paul, 204 AD2d 538 [1994]; Sternberger v Offen, 138 AD2d 480 [1988]). Accordingly, the Supreme Court properly denied the defendants' motion. Spolzino, J.P., Angiolillo, Leventhal and Lott, JJ., concur.