ZIMBLER v. The Board Managers of the Oxford on Seventy Second, et al., Defendants-Appellants.

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Supreme Court, Appellate Division, First Department, New York.

Marsha ZIMBLER, etc., et al., Plaintiffs-Respondents, v. RESNICK 72ND STREET ASSOCIATES, etc., et al., Defendants, The Board Managers of the Oxford on Seventy Second, et al., Defendants-Appellants.

Decided: March 24, 2009

SAXE, J.P., FRIEDMAN, SWEENY, RENWICK, FREEDMAN, JJ. Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered October 9, 2008, which denied the motion of defendants The Board Managers of the Oxford on Seventy Second and Brown Harris Stevens Residential Management, LLC, to preclude the presence of a stenographer or other recorder at the court-ordered psychological evaluation of the minor plaintiff to the extent of directing plaintiffs to arrange for the stenographer not to be present in the examination room, unanimously modified, on the facts, to direct that, if it is not feasible to station the stenographer outside the examination room so as not to be visible to anyone in the room and not to interfere with the proper conduct of the examination, then the stenographer's audio recording device may be placed, concealed, in the examining room during the evaluation and the recording transcribed later, and otherwise affirmed, without costs.

On the record presented, the motion court properly permitted plaintiffs to record the psychological examination of the infant plaintiff, provided that the stenographer is not present in the examination room (see Barraza v. 55 W. 47th St. Co., 156 A.D.2d 271, 548 N.Y.S.2d 660 [1989];  Milam v. Mitchell, 51 Misc.2d 948, 950, 274 N.Y.S.2d 326 [1966] ).   Defendants have not shown that the presence of a stenographer outside the room will unduly interfere with the examination.