NERO, JACQUANDA v. KENDRICK, ISAAC ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1011
CA 12-00595
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.
JAQUANDA NERO AND LAQUESHA NERO, INFANTS BY
THE PARENT AND NATURAL GUARDIAN, FELICIA NERO,
PLAINTIFFS-RESPONDENTS,
V MEMORANDUM AND ORDER
ISAAC KENDRICK, ELIZABETH KENDRICK,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.
BURGIO, KITA & CURVIN, BUFFALO (STEVEN P. CURVIN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.
ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.
Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), entered December 8, 2011. The order, insofar as
appealed from, denied the motion of defendants Isaac Kendrick and
Elizabeth Kendrick for a protective order.
It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs and the motion is
granted.
Memorandum: Isaac Kendrick and Elizabeth Kendrick (defendants),
as limited by their brief, appeal from that part of an order that
denied their motion for a protective order. Specifically, defendants
sought an order “requiring provision of a report by [Jaquanda Nero
(plaintiff)] . . . causally relating an injury to plaintiff’s
ingestion of lead based paint . . . .” Defendants also sought an
order that would allow them “120 days within which to conduct a
defense [medical examination] on behalf of the defendants . . . and
serve any such reports measured from the date of receipt of a report
from an expert retained on behalf of the plaintiff detailing any
injuries sustained by the plaintiff . . . as a result of elevated
blood lead levels . . . .” In denying defendants’ motion, Supreme
Court concluded that it was not authorized pursuant to CPLR 3103 to
order plaintiff to be examined by an expert. We reverse the order
insofar as appealed from and grant defendants’ motion.
Trial courts have broad discretion in supervising disclosure (see
Carpenter v Browning-Ferris Indus., 307 AD2d 713, 715-716), and CPLR
3103 (a) affords the court the authority to deny, limit, condition or
-2- 1011
CA 12-00595
regulate the use of any disclosure device to “prevent unreasonable
annoyance, expense, embarrassment, disadvantage, or other prejudice to
any person or the courts.” Here, the protective order sought by
defendants was appropriate relief. Defendants had previously sought
medical reports from plaintiffs pursuant to 22 NYCRR 202.17 and
plaintiffs responded to that request, but none of the material
provided contained any information concerning any condition, symptom
or problem that plaintiff was experiencing as the result of elevated
blood lead levels, “the physical . . . condition in issue” (Cynthia B.
v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 457). Indeed, the
plaintiff in a personal injury action is under an obligation both to
procure and to produce medical reports relating the claimed injury to
the allegations being made in the litigation (see Kelly v Tarnowski,
213 AD2d 1054). Furthermore, the court had already issued a
scheduling order requiring, inter alia, defendants to conduct a
medical examination of plaintiff by a date certain, and we conclude
that defendants should not be put to the time, expense and effort of
arranging for and conducting a medical examination of plaintiff
without the benefit of reports linking the symptoms or conditions of
plaintiff to defendants’ alleged negligence (see Adams v Rizzo, 13
Misc 3d 1235[A], 2006 NY Slip Op 52135[U], 47-48; see generally Matter
of Andrews v Trustco Bank, Natl. Assn., 289 AD2d 910, 912-913).
Entered: November 9, 2012 Frances E. Cafarell
Clerk of the Court