Chaudhary v. Gold

• Decision Date: 12 April 2011
• Citation: 2011 N.Y. Slip Op. 02929,921 N.Y.S.2d 219,83 A.D.3d 477
• Parties: Mohammed CHAUDHARY, et al., Plaintiffs–Respondents,v.Brian D. GOLD, Sr., et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 477

921 N.Y.S.2d 219

2011 N.Y. Slip Op. 02929

Mohammed CHAUDHARY, et al., Plaintiffs–Respondents,

v.Brian D. GOLD, Sr., et al., Defendants–Appellants.

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

April 12, 2011.

Law Offices of Lorne M. Reiter, LLC, New York (Lorne M. Reiter of counsel), for appellants.David J. DeToffol, P.C., New York (David J. DeToffol of counsel), for respondents.MAZZARELLI, J.P., FRIEDMAN, CATTERSON, DeGRASSE, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Paul Wooten, J.), entered June 16, 2009, which denied defendants' motion to compel plaintiff Mohammed Chaudhary to appear at a neuropsychological examination by an expert designated by defendants, or, in the alternative, to preclude plaintiffs from presenting evidence of damages at the time of trial, reversed, on the law and as a matter of discretion, without costs, defendants' motion granted, and plaintiff is directed to appear for said examination by an expert designated by defendants. Appeal from order, same court and Justice, entered October 13, 2009, denying defendants' motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable paper.

Although “discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” ( Andon v. 302–304 Mott St. Assoc., 94 N.Y.2d 740, 745, 709 N.Y.S.2d 873, 731 N.E.2d 589 [2000] ). Here the motion court erred in denying defendants' motion to compel plaintiff to submit to a neuropsychological examination. Defendants established the significant differences between a neuropsychiatric examination (already conducted by defense expert Fayer) and the proposed neuropsychological examination.

Defendants asserted that a neuropsychologist utilizes a different methodology and would administer a standardized battery of psychological tests that would quantify the type of brain injury and the degree of cognitive dysfunction related to possible damage of the brain. By contrast, a neuropsychiatrist focuses on emotional and psychiatric functioning.

In support of their motion, defendants submitted an affidavit from a neuropsychologist. That expert stated that his examination of plaintiff would quantify the type of brain injury that he allegedly suffers and would help distinguish between what is functional (i.e., psychiatric depression) or organic (i.e., cognitive dysfunction). He further stated that a neuropsychological examination would provide quantitative data about plaintiff's functioning, such as his IQ score and memory test score. The expert also stated that his testing could aid in forming an ultimate opinion as to the nature and cause of plaintiff's injury as well as to any symptom amplification or exaggeration, an essential defense for defendant.

CPLR 3101(a) requires the “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Pursuant to CPLR 3121, following the commencement of an action, if a plaintiff's physical condition is in controversy, the defendant may require the plaintiff to submit to a physical examination ( see Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857 [1969] ). Further, it is within the trial court's discretion to require a plaintiff to submit to more than one physical examination ( see Brown v. Metropolitan Transp. Auth., 256 A.D.2d 17, 18, 681 N.Y.S.2d 23 [1998] ). However, the party seeking the examination must demonstrate the necessity for it ( see Radigan v. Radigan, 115 A.D.2d 466, 467, 495 N.Y.S.2d 703 [1985] ).

Defendants have demonstrated that a neuropsychological examination is material and necessary in order to defend against plaintiff's claim that he has suffered head injuries with cognitive impairment ( see e.g. Chelli v. Banle Assoc., LLC, 22 A.D.3d 781, 803 N.Y.S.2d 201 [2005], lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 869, 853 N.E.2d 240 [2006] ).

All concur except MAZZARELLI, J.P. and MANZANET–DANIELS, J. who dissent in a memorandum by MANZANET–DANIELS, J. as follows:MANZANET–DANIELS, J. (dissenting).

I would affirm. Defendants failed to make the requisite showing that a further neuropsychological examination is material and necessary for the defense of the action ( see CPLR § 3101[a]; compare Radigan v. Radigan, 115 A.D.2d 466, 467, 495 N.Y.S.2d 703 [1985] ).

This personal injury action arises from a motor vehicle accident that occurred on November 1, 2005, when plaintiff's taxi was struck from behind by a truck being driven by defendant Brian D. Gold and owned by defendant Penske Truck Leasing Corp. Plaintiff alleges that as a result of the collision, his head struck the car's windshield, causing him to suffer traumatic brain injury. The primary diagnosis, upon admission to the emergency room, was left frontal lobe contusion. An initial CT scan showed a questionable hyperdense focus in the left frontal lobe but a follow-up CT showed no areas of abnormal attenuation and no evidence of acute intracranial hemorrhage, midline shift or mass effect.

Following the accident, plaintiff complained of a variety of symptoms including depression, anxiety, headaches, lack of coordination, personality change, behavioral disturbances and cognitive impairment marked by inattentiveness, poor short-term memory, confusion, and difficulty recognizing familiar people and places. Plaintiff's bill of particulars enumerated injuries including closed head trauma with concussion, cognitive impairment with dementia, slow speech, poor attentiveness, poor short-term memory and insight, headaches, depression, anxiety, post-traumatic stress disorder and panic attacks. The case management order, dated July 29, 2008, directed that examinations of plaintiff be completed by January 13, 2009.

On December 18, 2008, plaintiff appeared for a neurological evaluation conducted by Jerome M. Block, M.D....