Fabricant v. State, 32214

• Decision Date: 25 October 1955
• Docket Number: No. 32214,32214
• Parties: Phyllis FABRICANT, an infant under the age of 14 years, by Harry Fabricant, her guardian ad litem, and Harry Fabricant, individually, Claimants, v. The STATE of New York. (Claim) Court of Claims of New York
• Court: New York Court of Claims

Page 352

145 N.Y.S.2d 352

208 Misc. 898

Phyllis FABRICANT, an infant under the age of 14 years, by

Harry Fabricant, her guardian ad litem, and Harry

Fabricant, individually, Claimants, v. The STATE of New York.

(Claim No. 32214.)

Court of Claims of New York.

Oct. 25, 1955.

J. W. Bernstein, New York City, for claimants, by Ralph A. Matalon, Flushing, of counsel.

Jacob K. Javits, Atty. Gen., by Robert L. Horkitz, New York City, of counsel, for the State of New York. SYLVESTER, Judge.

It is alleged that the infant sustained a fractured arm as a result of the State's negligence. The examination of the infant by the State's physician indicated the desirability of obtaining X-rays of the affected arm and the State now moves for a further examination for that purpose. Claimant is agreeable that the motion be granted, provided a copy of the findings of the State's physician is delivered to him, and further, that if the X-ray plates indicate anything but a positive condition that claimant's physician be afforded an opportunity to inspect the X-ray plates. The State maintains that this condition may not be imposed upon it and, ordinarily, that would be so. Valentine v. State, 197 Misc. 972, 95 N.Y.S.2d 827, 831. However, it appears that there was an exchange of correspondence between the Attorney General and claimant's counsel which, in effect, makes for an understanding that claimant would agree to the X-ray examination provided that he receive 'a copy of the findings and if said findings are not positive, that our doctor be permitted to see the X-ray plates.' In these circumstances, cf. Andrews v. Ghikas, 278 App.Div. 658, 102 N.Y.S.2d 796, the motion of the State will be granted upon the condition that after the X-rays are taken, a copy of the findings is to be delivered to the claimant and, in the event that the findings are not positive, that the X-ray plates will be made available for inspection by claimant's physician; otherwise the motion will be denied.