Ditroia v Buck-Haskin

Ditroia v Buck-Haskin 2012 NY Slip Op 06914 Decided on October 17, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 17, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RANDALL T. ENG, P.J.
PETER B. SKELOS
CHERYL E. CHAMBERS
SANDRA L. SGROI, JJ.
2011-08868
(Index No. 16912/06)

[*1]Patricia Ditroia, et al., appellants,

v

Stephanie Buck-Haskin, respondent.




Jonah Grossman, Jamaica, N.Y. (Lawrence B. Lame of counsel),
for appellants.
Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S.
Krauchanka of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated April 20, 2011, which denied their motion to restore the case to the trial calendar, with leave to renew, inter alia, upon the completion of urodynamic testing of the plaintiff Patricia DiTroia.

ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion to restore the case to the trial calendar is granted.

Although a defendant is entitled to conduct a physical examination of a plaintiff who puts his or her physical condition at issue in an action (see CPLR 3121[a]; D'Adamo v Saint Dominic's Home, 87 AD3d 966, 970), a plaintiff may not be compelled to undergo medical testing procedures when it is established that the tests are invasive, painful, and harmful to the plaintiff's health (see D'Adamo v Saint Dominic's Home, 87 AD3d at 970; Rosatio v BNS Bldgs., LLC, 67 AD3d 984; Bobka v Mann, 308 AD2d 497, 498; Lapera v Shafron, 159 AD2d 614). Here, the plaintiffs established that the urodynamic testing sought by the defendant is painful, invasive, and would be potentially harmful to the injured plaintiff's health (see Santero v Kotwal, 4 AD3d 464, 465; Bobka v Mann, 308 AD2d at 498; Marino v Pena, 211 AD2d 668). Under these circumstances, the injured plaintiff, who has already been examined by the defendant's medical expert, should not be compelled to additionally undergo urodynamic testing in order to restore this case to the trial calendar.
ENG, P.J., SKELOS, CHAMBERS and SGROI, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court