POKORSKI v. FDA LOGISTICS LLC LLC (2021)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed in the exercise of discretion without costs and the motion is denied.

Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when he slipped and fell on accumulated snow and ice on defendants’ property. Defendants served plaintiff with a notice of physical examination pursuant to CPLR 3121 requiring plaintiff to undergo a neuropsychological examination (NPE), and plaintiff moved by order to show cause for an order precluding defendants from obtaining the NPE on the ground that the NPE would be cumulative of the other neurological examinations plaintiff was required to undergo. Supreme Court granted the motion, and defendants appeal.

Although discovery determinations generally rest within the sound discretion of the trial court (see e.g. Mosey v. County of Erie, 148 A.D.3d 1572, 1573, 50 N.Y.S.3d 641 [4th Dept. 2017]; McCarter v. Woods, 106 A.D.3d 1540, 1541, 964 N.Y.S.2d 825 [4th Dept. 2013]), here, we substitute our discretion for that of the court and conclude that the motion should be denied (see generally Hawe v. Delmar, 148 A.D.3d 1788, 1789, 50 N.Y.S.3d 777 [4th Dept. 2017]; Daniels v. Rumsey, 111 A.D.3d 1408, 1409, 975 N.Y.S.2d 303 [4th Dept. 2013]). CPLR 3101 (a) requires the “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Following the commencement of an action, if a plaintiff's mental or physical condition is in controversy, the defendant may require the plaintiff to submit to a mental or physical examination pursuant to CPLR 3121. There is no restriction in the statute limiting the number of examinations to which a plaintiff may be subjected; however, a defendant seeking a further examination must demonstrate the necessity for it (see Carrington v. Truck-Rite Dist. Sys. Corp., 103 A.D.3d 606, 607, 959 N.Y.S.2d 258 [2d Dept. 2013]; Futersak v. Brinen, 265 A.D.2d 452, 452, 697 N.Y.S.2d 89 [2d Dept. 1999]).

Under the circumstances of this case, we agree with defendants that the preclusion order sought by plaintiff is not warranted inasmuch as the NPE is material and necessary to defend against plaintiff's claims that he sustained head injuries and cognitive impairment (see generally Chaudhary v. Gold, 83 A.D.3d 477, 478, 921 N.Y.S.2d 219 [1st Dept. 2011]). Here, plaintiff placed his mental and physical condition in controversy by alleging in the verified complaint, as amplified by the verified bills of particulars, that he injured, inter alia, his head, neck, spine, left wrist and left elbow and suffered “emotional and psychological pain ․ with related mental anguish, stress, and anxiety” as a result of the accident. Furthermore, defendants’ submissions in opposition to the motion established, inter alia, that plaintiff's neurologist and psychologist had both ordered neuropsychological evaluations of plaintiff that had not been conducted, and that the requested NPE differs significantly from neurologic and neurosurgical examinations. In particular, defendants submitted an affidavit from the neuropsychologist who would conduct the NPE, who averred that he would utilize a different methodology, would administer a different battery of psychological tests, and would complete more detailed cognitive testing to determine the existence of any mood or behavioral deficits resulting from plaintiff's alleged injuries, whereas the testing done by neurologists and neurosurgeons generally focuses on physical abnormalities and physical manifestations of those abnormalities.