TOA CONSTRUCTION CO INC v. TSITSIRES (2004)

Order of the Appellate Term of the Supreme Court, First Department, entered March 21, 2003, which affirmed orders of Civil Court, New York County (Timmie Elsner, J.), dated March 12, 2002, which (a) denied petitioner landlord's motion to strike respondent tenant's affirmative defense of mental disability, conditioned on respondent's compliance with prior orders directing production of documents, and (b) denied petitioner's motion to compel respondent to submit to an independent psychiatric examination, unanimously modified, on the law and the facts, to grant petitioner's motion to compel, and otherwise affirmed, without costs.

 The court properly conditioned the striking of respondent's affirmative defense of mental disability on his production of medical records pursuant to petitioner's discovery demands.   Although respondent delayed in producing these documents, his conduct was not willful or contumacious, and did not merit the drastic sanction of striking his answer unconditionally (Frye v. City of New York, 228 A.D.2d 182, 643 N.Y.S.2d 90).

 Respondent did, however, place his mental condition in controversy (CPLR 3121[a] ) by asserting it as an affirmative defense in his pleadings and by submitting himself to an examination by a physician of his choice, the results of which he may seek in aid of his defense.   Petitioner adequately demonstrated ample need for an independent psychiatric examination (New York Univ. v. Farkas, 121 Misc.2d 643, 468 N.Y.S.2d 808).