Cooper v. McInnes

Decision Date12 December 2013
Citation112 A.D.3d 1120,977 N.Y.S.2d 767,2013 N.Y. Slip Op. 08322
PartiesFrederick COOPER et al., Appellants, v. Terry McINNES et al., Respondents.
CourtNew York Supreme Court — Appellate Division


Athari & Associates, LLC, Utica (Mo Athari of counsel), for appellants.

Knych & Whritenour, LLC, Syracuse (Brendan J. Reagan of counsel) and Law Offices of Epstein, Gialleonardo & Hartford, Getzville (Jennifer Schiffmacher of counsel), for respondents.



Appeal from an order of the Supreme Court (O'Shea, J.), entered February 14, 2013 in Chemung County, which, among other things, denied plaintiffs' motion for a protective order.

Plaintiffs commenced this negligence action alleging various injuries caused by exposure to lead paint when they were children residing in apartment buildings managed or owned by defendants. Defendants served a notice to have plaintiffs examined by psychologist Thomas Griffiths. Plaintiffs moved for a protective order disqualifying Griffiths as the examiner or, alternatively, precluding Griffiths from asking questions regarding “socioeconomics, eugenic [s] or euthenics” and permitting videotaping of the examination. Defendants cross-moved to preclude videotaping or observation of the examination by counsel. Supreme Court denied plaintiffs' motion and partially granted defendants' cross motion. The court, among other things, determined that plaintiffs could have counsel or a representative present during the examination provided that such person remained five feet behind the person being examined and “not use a computer, cell phone or other electronic device during the evaluation, and ... not record the evaluation or speak with ... Griffiths or anyone else during the evaluation.” Plaintiffs appeal.

We affirm. [The] trial court has broad discretionary power in controlling discovery and disclosure’ (Matter of Scaccia, 66 A.D.3d 1247, 1249, 891 N.Y.S.2d 484 [2009], quoting Allen v. Krna, 282 A.D.2d 946, 947, 723 N.Y.S.2d 730 [2001] ). “Although we can substitute our discretion for that of the trial court regarding disclosure, we typically limit our review to whether the trial court clearly abused its discretion” (Herbenson v. Carrols Corp., 101 A.D.3d 1220, 1221, 955 N.Y.S.2d 678 [2012] [citations omitted] ). While plaintiffs' counsel has dealt with Griffiths in previous cases and does not agree with his approach in lead exposure cases, nonetheless the record does not reflect a level of biased or unabashed antipathy by Griffiths such that it constituted an abuse of discretion for Supreme Court to permit defendants to use this expert ( see Lewis v. John, 87 A.D.3d 564, 565–566, 928 N.Y.S.2d 78 [2011]; Noteboom v. Shugrue, 306 A.D.2d 453, 453, 761 N.Y.S.2d 527 [2003]; cf. Pettway v. Ogbonna, 261 A.D.2d 700, 700, 689 N.Y.S.2d 725 [1999] ). Nor are we persuaded that Supreme Court erred in denying plaintiffs' request that Griffiths be precluded from inquiring about plaintiffs' family history as part of his examination ( see Derr v. Fleming, 106 A.D.3d 1240, 1243, 965 N.Y.S.2d 209 [2013]; Cunningham v. Anderson, 85 A.D.3d 1370, 1374–1375, 925 N.Y.S.2d...

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9 cases
  • Bermejo v. N.Y.C. Health & Hosps. Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • November 18, 2015
    ...for permission to videotape physical examinations has been upheld by various appellate courts in this State (see Cooper v. McInnes, 112 A.D.3d 1120, 1121, 977 N.Y.S.2d 767 ["Supreme Court acted well within its discretion in prohibiting video or audio recording of the psychological examinati......
  • In re RR
    • United States
    • New York Supreme Court — Appellate Division
    • December 12, 2013
  • Perez v. Fleischer
    • United States
    • New York Supreme Court — Appellate Division
    • November 20, 2014 least in part, by factors other than lead poisoning, including environmental, social and family factors (see Cooper v. McInnes, 112 A.D.3d 1120, 1121, 977 N.Y.S.2d 767 [2013] ; Derr v. Fleming, 106 A.D.3d 1240, 1243–1244, 965 N.Y.S.2d 209 [2013] ; Robinson v. Bartlett, 95 A.D.3d 1531, 15......
  • Vargas v. City of N.Y.
    • United States
    • New York Supreme Court — Appellate Division
    • January 18, 2017
    ...the plaintiff to videotape the examination (see Flores v. Vescera, 105 A.D.3d 1340, 1340, 963 N.Y.S.2d 884 ; Cooper v. McInnes, 112 A.D.3d 1120, 1121, 977 N.Y.S.2d 767 ; Lamendola v. Slocum, 148 A.D.2d 781, 781, 538 N.Y.S.2d 116 ...
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