FLORES, AMANDA v. VESCERA, FRANCIS X.

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
184
CA 12-01478
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
AMANDA FLORES,
PLAINTIFF-RESPONDENT-APPELLANT,
V MEMORANDUM AND ORDER
FRANCIS X. VESCERA, DEFENDANT-RESPONDENT,
AND CHRISTOPHER VESCERA,
DEFENDANT-APPELLANT-RESPONDENT.
GREENE, HERSHDORFER & SHARPE, SYRACUSE (SHERRY R. BRUCE OF COUNSEL),
FOR DEFENDANT-APPELLANT-RESPONDENT.
ATHARI & ASSOCIATES, LLC, UTICA (NICOLE C. PELLETIER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.
Appeal and cross appeal from an order of the Supreme Court,
Oneida County (Samuel D. Hester, J.), entered March 23, 2012. The
order, among other things, denied the motion of plaintiff for a
protective order and denied in part the cross motion of defendant
Christopher Vescera for a protective order.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Christopher Vescera (defendant) appeals and
plaintiff cross-appeals from an order denying plaintiff’s motion for a
protective order permitting her to videotape a neuropsychological
evaluation (NPE) using a one-way mirror, and denying that part of
defendant’s cross motion to preclude plaintiff’s counsel or other
representative from attending the NPE. With respect to plaintiff’s
motion, we note that there is no express statutory authority to
videotape medical examinations (see CPLR 3121; 22 NYCRR 202.17;
Lamendola v Slocum, 148 AD2d 781, 781, lv dismissed 74 NY2d 714), and
videotaping has not been allowed in the absence of “special and
unusual circumstances” (Lamendola, 148 AD2d at 781). We conclude that
plaintiff failed to establish the requisite special and unusual
circumstances (cf. Mosel v Brookhaven Mem. Hosp., 134 Misc 2d 73).
With respect to defendant’s cross motion, we conclude that Supreme
Court properly determined that defendant failed to make the requisite
positive showing of necessity for the exclusion of plaintiff’s counsel
or other representative from attending the NPE by establishing that
the presence of such an individual would impair the validity and
effectiveness of the NPE (see Jessica H. v Spagnola, 41 AD3d 1261,
-2- 184
CA 12-01478
1262-1263).
Entered: April 26, 2013 Frances E. Cafarell
Clerk of the Court