Freeman v. Fett , 198 N.Y.S.2d 138 ( 1960 )

James J. Conroy, J.

Motion by the plaintiff for an order requiring the defendant Herbert Charles Fett, Jr., to furnish bim with a copy of the report of Dr. James T. Daniels, a physician who examined the plaintiff on behalf of the said defendant.

The motion is opposed on .the ground the plaintiff has heretofore filed his statement of readiness and that no further discovery proceedings may be had. Request is also made by other defendants that if the court grant the plaintiff’s request, it should be on the specific condition that the plaintiff furnish to the defendants copies of his medical reports.

Defendants Fett and Owre have cross-moved for an order directing the attorney for the plaintiff to furnish to the attorneys for said defendants, a copy of any physical examinations performed upon the plaintiff by any and all physicians in connection with this lawsuit.

The, Appellate Division of the Second Department has held that the plaintiff is not required to submit his doctor’s reports to the defendant as a condition for being furnished a copy of the report of his. physical examination by the defendant’s physician whether such examination was voluntary (Baum v. Mussenbaum, 7 A D 2d 991) or pursuant to an order (Mansoor v. Simon, 5 A D 2d 845). In the recent case of Yudenfreund v. Mortimer (9 A D 2d 935), the same court has held: “ The filing of a statement of readiness does not bar a plaintiff’s right to a copy of the report of his physical examination by defendant’s doctor (Berken v. Levitt, 8 A D 2d 938), nor may his right thereto be conditioned upon his furnishing defendant with a copy of the report of examination by his own physician ”.

The motion of the plaintiff is therefore granted and the cross motion of the defendants Fett and Owre is granted only to the extent of permitting a specialist of the said defendants’ choosing to view and examine any X rays taken of the planntiff by any physician since such X rays are presumably admissible in evidence and hence subject to discovery and inspection. Settle order.