CHAVOUSTIE v. NEW YORK HOSPITAL CORNELL MEDICAL CENTER (1998)

Appeal from order, Supreme Court, New York County (Harold Tompkins, J.), entered June 10, 1997, which denied plaintiff's motion for a protective order against a psychiatric examination directed in a preliminary conference order and dismissed the complaint, deemed an appeal from the judgment, same court and Justice, entered August 7, 1997, dismissing the complaint, and, so considered, the judgment unanimously affirmed, without costs.

 Defendants are entitled to a psychiatric examination of plaintiff (CPLR 3121).   Plaintiff, who is in therapy, failed to make a prima facie showing that such an examination poses a serious threat to her health (compare, Lefkowitz v. Nassau County Med. Center, 94 A.D.2d 18, 462 N.Y.S.2d 903), or that she lacks the mental capacity to submit (compare, Flaherty v. Olins Leasing, 91 A.D.2d 970, 457 N.Y.S.2d 341), and her motion was therefore properly denied without a hearing.   Plaintiff's resistance to the examination, along with nearly four years of delay for which she is almost entirely responsible, has substantially prejudiced defendants, and the complaint was properly dismissed.

MEMORANDUM DECISION.