Pettinato v. EQR-Rivertower, LLC
| Decision Date | 10 January 2023 |
| Docket Number | Appeal No. 16441,Index No. 159909/16,Case No. 2021-03134 |
| Citation | 182 N.Y.S.3d 64 |
| Parties | Laura PETTINATO et al., Plaintiffs-Respondents, v. EQR-RIVERTOWER, LLC, et al., Defendants-Appellants, Oldcastle Buildingenvelope, Inc., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Tyson & Mendes LLP, New York (Bryan J. Ferrara of counsel), for EQR-Rivertower, LLC, EQR-Rivertower A, LLC, EQR-Rivertower B, LLC, EQR-Rivertower C, LLC, EQR-Rivertower D, LLC and EQR-Rivertower E, LLC, appellants.
Rosenbaum & Taylor, P.C., White Plains (Leslie Luke and Tracy L. Frankel of counsel), for River Tower Owner, LLC, appellant.
McMahon, Martine & Gallagher, LLP, Brooklyn (Patrick W. Brophy of counsel), for respondents.
Dianne T. Renwick, J.P., David Friedman, Anil C. Singh, Martin Shulman, John R. Higgitt, JJ.
RENWICK, J.P.,
In this personal injury action, plaintiff's complaint alleges that she slipped while exiting the shower/bathtub and fell on the shower track, in the bathroom of her apartment, in the building owned and operated by defendants. Plaintiff claims that she suffered serious and permanent injuries to her genital area, including her pelvic area, and that such injuries resulted in current symptoms that include her inability to engage in prolonged sitting without pain, and her lack of flexibility on the right side of her body. To contest the extent of plaintiff's injuries, as well as whether her current conditions are proximately caused by her genital injuries, defendants seek to conduct an independent medical examination (IME) of plaintiff comprised of a comprehensive gynecological examination inclusive of a pelvic examination. Supreme Court permitted the gynecological examination, but not the pelvic examination. For the reasons that follow, we find that Supreme Court should not have limited the scope of the IME.
Plaintiff's slip and fall occurred in March 2016. Plaintiff commenced this action in November 2016. From the inception of the litigation until the present, plaintiff has been treated by Dr. Linda A. Kiley, MD., who is both a general obstetrician and a gynecologist, with a subspecialty in female pelvic medicine and reconstructive surgery. As indicated in plaintiff's bill of particulars, Dr. Kiley's initial examination of plaintiff revealed that plaintiff suffered serious injuries, including a vulvar laceration, tenderness and swelling of the labia, pelvic pain, pudendal neuralgia,1 and dyspareunia.2
Subsequent to plaintiff's examination before trial, defendants designated Dr. Lawrence Lind (a medical doctor specializing in urogynecology) to examine plaintiff regarding her genital injuries. Plaintiff appeared for the IME with Dr. Lind on March 14, 2019, but declined to remove her clothes. Defendants then moved to compel plaintiff to appear for a comprehensive gynecological examination that included the use of a speculum, a digital examination, and a bimanual examination of the pelvis.
In support of the motion, defendants submitted an affidavit (dated 2/18/2021), from Dr. Lind indicating that "[i]n order to assess the severity of each of [plaintiff's] medical problems a full gynecological examination is required." Dr. Lind explained that "[a] proper inspection of the vulva simply cannot be conducted merely by ... a visual inspection" because such inspection "would only potentially allow him to see any scar and would not allow [him] to be able to evaluate the vagina or the pudential nerve." Thus "[a] one finger examination is needed in order to fully inspect the entire vulva." Further, Dr. Lind explained, "[w]hereas Plaintiff is not just claiming to have sustained a vulvar laceration, but [she] is also claiming severe pelvic pain, severe tenderness of the labia, vulvodynia, pudendal neuralgia and dyspareunia, a routine comprehensive gynecological examination is needed in order to properly evaluate her physical complaints and the possible causes thereof, including to assess the presence of any cysts which could contribute to Plaintiff's claimed pain." Finally, Dr. Lind indicated, "[t]his examination would be less than five minutes in length and would require the use of a speculum, digital exam and bimanual exam of the pelvis."
In opposition, plaintiff submitted two affidavits from her treating physician, Dr. Linda A. Kiley, MD. In her first affidavit dated 1/24/2020, Dr. Kiley indicated that forcing plaintiff to submit to a Dr. Kiley also expressed concerns that because plaintiff allegedly suffers from PTSD as a result of the accident, "subjecting her to further and unnecessary pelvic examination would pose a clear and significant risk of harm to [plaintiff] in potentially triggering her PTSD."
In her second affidavit (dated 4/3/2021), Dr. Kiley indicated her specific concerns about the proposed pelvic examination, which were as follows:
As indicated, the motion court granted the motion to compel the IME but limited the scope of the examination, so that the comprehensive gynecological examination would not include the techniques "involving use of a speculum, a digital exam and a bimanual exam of the pelvis ...." In balancing the need for the IME and the treating doctor's concerns for the health of her patient, the motion court rejected, as "unpersuasive," Dr. Kiley's concerns that the comprehensive gynecological examination would "trigger [plaintiff's] PTSD." Specifically, the motion court found that such opinion lacked any probative value where it was offered without any medical evidence from plaintiff's "treating psychiatrist, or any mental health professional." Nevertheless, the motion court found that plaintiff established that the pelvic exam procedures were "invasive and potentially harmful." Accordingly, the motion court suggested that "[o]ther ... diagnostic or investigative procedures – such as X-ray, magnetic resonance imaging or similar techniques—should be considered."
A plaintiff in a personal injury action affirmatively places her physical and/or mental condition in controversy (see Koump v. Smith , 25 N.Y.2d 287, 295, 303 N.Y.S.2d 858, 250 N.E.2d 857 [1969] ). Pursuant to CPLR 3121, following the commencement of an action, "[w]here a plaintiff puts her physical condition at issue, the defendants may require a plaintiff to submit to an IME by a physician retained by defendant for that purpose" ( Markel v. Pure Power Boot Camp, Inc. , 171 A.D.3d 28, 29, 96 N.Y.S.3d 187 [1st Dept. 2019] ; see also Arons v. Jutkowitz , 9 N.Y.3d 393, 409, 850 N.Y.S.2d 345, 880 N.E.2d 831 [2007] ). Thus, this is not a case about whether an IME, specifically a gynecological examination, should have been permitted.
Instead, this is a case about the scope of such a physical examination. In determining what kind of examination to authorize, the court must balance the desire for the plaintiff to be examined safely and free from pain against the need for the defendant to determine facts in the interest of truth (see Lefkowitz v. Nassau County Med. Ctr., 94 A.D.2d 18, 21-22, 462 N.Y.S.2d 903 [2d Dept. 1983] ). Thus, a showing of the medical importance and safety of the particular procedure is required, as well as an explanation of the relevance and the need for the information that a procedure will yield ( id. at 21-22, 462 N.Y.S.2d 903 ).
Accordingly, "an examination should not be required if it presents the possibility of danger to [a plaintiff's] life or health" ( Lefkowitz, 94 A.D.2d at 21, 462 N.Y.S.2d 903 ). For example, in D'Adamo v. Saint Dominic's Home , the Second Department held that a protective order was warranted where the defendant sought to compel the plaintiff to undergo a rigid sigmoidoscopy3 , which requires penetration of the rectum ( 87 A.D.3d 966, 969-970, 929 N.Y.S.2d 301 [2d Dept. 2011] ). The Second Department held that, "[e]ven though a defendant is entitled to thoroughly examine a plaintiff who puts his or her physical and/or mental condition in issue, a plaintiff may not be compelled to undergo objective testing procedures when it is established that the tests are invasive, painful, and harmful to the person's health" ( id. at 970, 929 N.Y.S.2d 301 [citations omitted]). The plaintiff met her initial burden of showing that the proposed procedures were "potentially harmful and clearly invasive," while "the defendant failed to establish that the intended procedures would not be harmful" ( id. ).
Conversely, a defendant is entitled to an IME of a plaintiff where the plaintiff fails to make a prima facie showing that it is potentially harmful or poses a serious threat to her health (see Chavoustie v. New York Hosp.-Cornell Med. Ctr. , 253 A.D.2d 702, 677 N.Y.S.2d 572 [1st Dept. 1998], lv denied 93 N.Y.2d 805, 689 N.Y.S.2d 429, 711 N.E.2d 643 [1999] ; Koenig v. Furniture Intrigue, Inc., 155 A.D.2d 243, 546 N.Y.S.2d 622 [1st Dept. 1989] ; see also Lefkowitz, 94 A.D.2d at 21-22, 462 N.Y.S.2d 903 )....
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