Brooks v. Hausauer

• Decision Date: 16 January 1976
• Docket Number: No. 1,1
• Citation: 379 N.Y.S.2d 306,51 A.D.2d 660
• Parties: John T. BROOKS, Individually and as Father and Natural Guardian of Kevin L. Brooks, Appellant, v. Harold F. HAUSAUER and Cottrell Bus Service, Inc., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 306

379 N.Y.S.2d 306

51 A.D.2d 660

John T. BROOKS, Individually and as Father and Natural Guardian of Kevin L. Brooks, Appellant, v. Harold F. HAUSAUER and Cottrell Bus Service, Inc., Respondents.

Appeal No. 1.

Supreme Court, Appellate Division, Fourth Department.

Jan. 16, 1976.

Paul William Beltz, P.C., Robert Nichols, Buffalo, for appellant.

Smith, Murphy & Schoepperle, Frank Godson, Buffalo, for respondents.

Before MARSH, P.J., and SIMONS, MAHONEY, GOLDMAN and WITMER, JJ.

MEMORANDUM:

We consider here two appeals, the first being from that part of an order of Special Term, filed April 14, 1975, which permits defendants to receive complete copies of any and all medical and psychological reports concerning the infant plaintiff both before and after the accident, and provides that if the infant plaintiff was under the care of any other family physician or pediatrician, either before or after the accident of January 11, 1966, other than Dr. Fadale, defendants may have an examination of such other family physician or pediatrician with respect to his care and treatment of the infant.

The second appeal is from an order of Special Term, filed on June 3, 1975, as the result of a motion for reargument. This order modified the original order by striking the last paragraph of said order relative to the examination of such other family physicians without prejudice to defendants moving at a later date for an examination of one or more of the physicians.

The injuries which are the basis of this lawsuit were sustained on January 11, 1966 by the infant plaintiff, Kevin Brooks, then five years of age. It was alleged that he was struck by a bus operated by defendant, Harold F. Hausauer, and owned or controlled by Cottrell Bus Service, Inc. It is contended that the infant plaintiff suffered certain physical injuries resulting in an alleged personality disorder and/or certain psychological disturbances.

The basic question upon this appeal is whether the defendants should be allowed to discover all medical and psychological reports of the infant plaintiff both before and after the accident of January 11, 1966. The scope of disclosure is covered in CPLR 3101(a), viz., 'There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof.' This section has been liberally interpreted by this court and the Court of Appeals so as to require disclosure of information sufficiently related to the issues 'which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.' (Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 452, 235 N.E.2d 430, 432.) Appellant contends that the relief sought by defendants is far beyond that which is permitted by CPLR 3121 as well as Fourth Department Rule 22 NYCRR 1024.25.

The pleadings are convincing that the infant plaintiff's psychological and physical condition is in controversy and that the medical reports included in the pleadings mandate that the defendants should have access to psychological reports made prior to the accident if they are adequately to defend themselves against the allegations of the plaintiff. We stated in Matter of Will of Saul Schneier, Deceased, 50 A.D.2d 715, 374 N.Y.S.2d 872 (decided Nov. 6, 1975) that, 'The test for disclosure is materiality, that is, relevancy and usefulness (Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406--407, 288 N.Y.S.2d 449, 452--453, 235 N.E.2d 430, 432--433; Rufer v....