Padilla v. Damascus

• Decision Date: 06 March 1962
• Citation: 225 N.Y.S.2d 462,16 A.D.2d 71
• Parties: Ramonita PADILLA, an infant, by Raymond Padilla, her guardian ad litem, Plaintiff-Respondent, v. Kyriaco DAMASCUS and James Damascus, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 462

225 N.Y.S.2d 462

16 A.D.2d 71

Ramonita PADILLA, an infant, by Raymond Padilla, her guardian ad litem, Plaintiff-Respondent, v. Kyriaco DAMASCUS and James Damascus, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

March 6, 1962.

Sidney Advocate, New York City, of counsel (Irving Segal, New York City, attorney) for appellants.

Bernard Kessler, New York City, for respondent.

Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY, and EAGER, JJ.

BOTEIN, Presiding Justice.

By arrangement between the attorneys for the parties after joinder of issue in this personal injury action, plaintiff was examined in behalf of defendants by a Dr. Felix Grayson. At the time of the examination plaintiff's attorney exhibited to Dr. Grayson 'all medical documents, reports and hospital records' and thereafter forwarded to defendants' attorney the report of plaintiff's physician and an authorization to obtain and make copies of the hospital records. When a request for a copy of Dr. Grayson's report was not honored, plaintiff moved for a direction that it be furnished. Defendants, citing Curran v. Casella, 8 A.D.2d 423, 188 N.Y.S.2d 48, opposed on the ground that the examination was not held pursuant to Rule XII of the New York County Supreme Court Trial Term Rules. The court granted the motion on the authority of Totoritus v. Stefan, 6 A.D.2d 123, 175 N.Y.S.2d 802, and found Curran v. Casella not in point, 'since in that case the motion was made pursuant to Rule XII, whereas in the case at bar, the instant motion is not predicated upon that rule.'

While we agree with the disposition by the court below, we reach it on somewhat different grounds. Rule XII provides: 'In all actions in which recovery is sought for personal injuries, disability or death, except actions for medical or dental malpractice, physical examinations and the exchange of medical information shall be governed by the provisions hereinafter set forth.' The fact that plaintiff's motion does not explicitly purport to be predicated on the rule does not mean that the rule has no force in a related situation. Sporadic departure from its mandates would undermine its objective of fair and orderly procedure, and, indeed, where the rule may operate unsuitably, relief is obtainable under subdivision 10.

But, as in other pretrial procedures, strict adherence to the pattern of the rule is not required if, to serve their own convenience, the parties stipulate otherwise and if the stipulation is consonant with the purposes of the rule. In effect, such is the case here. Defendants might have given formal notice under the rule of an examination by Dr. Grayson. This would have started a process by which the report of plaintiff's physician would have been submitted to Dr. Grayson, the plaintiff would then have been examined by him, and pursuant to subdivision 3 of the rule his report would thereafter have been furnished to plaintiff. Here the attorneys agreed that the same steps should be accomplished informally. To hold defendants to the agreement does no violation to Rule XII. Nor is the doctrine of Curran v. Casella, supra, violated in any material sense, for Dr. Grayson was apprised of the nature of plaintiff's physical claim at the time of his examination, and the report of plaintiff's physician was delivered to defendant.

We are quite aware that there was no express, formal agreement between the attorneys. But physical examinations are virtually sine qua non of personal injury practice, and it is highly unlikely that a lawyer, particularly one representing a casualty insurance company, would be unacquainted with Rule XII. We have no doubt that the attorneys here intended and implicitly undertook to comply, albeit informally, with the fundamentals of the rule. No statement by defendants' attorney that he did not expect to deliver Dr. Grayson's report can be found in his affidavit.

Defendants argue further that the 'essential effect' of withholding a physician's report is to preclude his testimony at the trial, and they sharpen their point by reference to a fact not known to the court when it decided the motion, namely, that Dr. Grayson died after the motion was heard. If reports were exchanged solely to assist cross-examination of medical witnesses, their absence from the stand, whether by preclusion or death, would indeed render the reports useless. But the aim of Rule XII is true pretrial discovery--that each party should know as much about the other's claim as is fairly and appropriately possible. Various ends are served when the boundaries of the respective medical claims are delineated and revealed. Issues are narrowed, surprise avoided, pretrial dispositions by settlement or otherwise aided, the burdens of preparation lightened, the number of medical witnesses reduced. To say that the delivery of Dr. Grayson's report would have been conducive to none of these ends because of his death is to engage in unwarranted speculation.

In fact, subdivision 8 of the rule is concerned with more than preclusion of testimony. It provides, subject to contrary judicial determination, that 'no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously exchanged'. Plaintiff here alleges complete deafness as the result of defendants' negligence. Let us assume that Dr. Grayson's report fully confirmed this condition, that the report was delivered to plaintiff, and that Dr. Grayson was living at the time of trial. Presumably, whether he testified or not, plaintiff could justifiably object to evidence of only partial deafness. Withholding the report in these circumstances would be a deprivation prejudicial to plaintiff. If we again assume the same state of facts, except that Dr. Grayson is not living and that defendants cause plaintiff to be examined by another physician who funds only partial deafness or that defendants make no further examination at all, plaintiff may be similarly prejudiced. May evidence of partial deafness be introduced? No answer need be furnished. The point is that withholding Dr. Grayson's report deprives plaintiff of the means and opportunity to even challenge the admissibility of such evidence.

Defendants in good faith should have delivered Dr. Grayson's report, are able to do so, and have not done so. In our opinion they have not shown that plaintiff can make no legitimate use of the report and that its delivery would serve none of the purposes of Rule XII.

Accordingly, the order directing defendants to furnish plaintiff with a copy of the report of their examining physician, should be affirmed, with costs.

Order, entered on April 17, 1961, affirmed with $20 costs and disbursements to the respondent. All concur except McNally, J. who dissents in a dissenting opinion.

McNALLY, Justice (dissenting).

I dissent and vote to reverse and deny the motion.

Involved is the power to compel defendants to produce for discovery and inspection a copy of the report of their deceased examining physician in an action for personal injuries.

It has been repeatedly held that discovery is purely statutory. (McQuigan v. Delaware, Lackawanna & Western R. R. Co., 129 N.Y. 50, 55, 29 N.E. 235, 236, 14 L.R.A. 466; People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200; Hallenbeck v. Parr, 65 App.Div. 167, 72 N.Y.S. 488; Matter of Ehrich v. Root, 134 App.Div. 432, 119 N.Y.S. 395.) Section 324 of the Civil Practice Act provides for discovery of 'a copy or photograph of a book, document, or other paper * * * relating to the merits of...