A.W. v. County of Oneida

• Decision Date: 17 November 2006
• Docket Number: CA 06-01114.
• Citation: 2006 NY Slip Op 08411,827 N.Y.S.2d 790,34 A.D.3d 1236
• Parties: A.W., et al., Infants, by Their Parent and Natural Guardian, ALISSA WARD, Appellants, v. COUNTY OF ONEIDA et al., Defendants, and BOWPAS PROPERTIES, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

34 A.D.3d 1236

827 N.Y.S.2d 790

2006 NY Slip Op 08411

A.W., et al., Infants, by Their Parent and Natural Guardian, ALISSA WARD, Appellants, v. COUNTY OF ONEIDA et al., Defendants, and BOWPAS PROPERTIES, INC., et al., Respondents.

CA 06-01114.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided November 17, 2006.

Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.), entered February 24, 2006 in a personal injury action. The order, among other things, granted the motions of defendants Bowpas Properties, Inc. and James G. Mogle for a protective order precluding plaintiffs from having a third-party observer physically, electronically or otherwise present during their neuropsychological examinations and denied that part of plaintiffs' cross motion seeking leave to amend the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motions in part and providing that plaintiffs are precluded from having a third-party observer other than their attorney or other representative approved by Supreme Court physically, electronically or otherwise present during their neuropsychological examinations and by granting that part of the cross motion seeking leave to amend the complaint upon condition that plaintiffs shall serve the proposed amended complaint within 20 days of service of a copy of the order of this Court with notice of entry and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Oneida County, for further proceedings in accordance with the following memorandum: Plaintiffs, by their mother, commenced this action to recover damages for injuries they allegedly sustained as a result of their exposure to lead paint. Following a conference with Supreme Court, the court ordered that the neuropsychological examinations of plaintiffs sought by Bowpas Properties, Inc. (Bowpas) and James G. Mogle (collectively, defendants) by their experts were to be completed and the reports provided to plaintiffs' attorney within 90 days of the date on which the order was signed. The court granted defendants' motions seeking a protective order precluding plaintiffs from having a "third-party observer," including plaintiffs' attorney or other representative, "physically, electronically or otherwise present" during the examinations of plaintiff brother and granted Mogle's motion for that relief with respect to plaintiff sister. A party is "entitled to be examined in the presence of [his or] her attorney or other ... representative ... so long as [that person does] not interfere with the conduct of the examinations" (Ponce v Health Ins. Plan of Greater N.Y., 100 AD2d 963, 964 [1984]), "unless [the] defendant makes a positive showing of necessity for the exclusion of" such an individual (Parsons v Hytech Tool & Die, 241 AD2d 936, 936 [1997]; see Ramsey v New York Univ. Hosp. Ctr., 14 AD3d 349, 350 [2005]). The defendant must establish that the presence of the attorney or other representative will "impair the validity and effectiveness of the particular examination" that is to be conducted (Matter of Alexander L., 60 NY2d 329, 332 [1983]). Here, defendants failed to make that showing with respect to the neuropsychological examinations to be conducted, and thus the court erred in granting...