Goodman v. Stein

Untermyer, J. Although the rule is established in this department that an examination before trial will not ordinarily be granted in actions for tort (Shaw v. Samley Realty Co., Inc., 201 App. Div. 433), we think some part of the examination sought should have been allowed under the special circumstances which existed here. The plaintiff employed the defendant, a plastic surgeon, to perform two operations on her breasts. She alleges that the operations were so negligently performed that they resulted in permanent disfigurement and excessive pain. To establish the allegation of negligence the plaintiff, by items 2 and 4 of the notice of motion, seeks an examination before trial to require the defendant to testify concerning the manner in which the operations were performed while she was under general anesthetic. We think the defendant should not be permitted to withhold from the plaintiff by whom he was employed the facts concerning an operation performed upon her while she was unconscious. Indeed, we have frequently held such examinations to be proper under similar or identical conditions (Landrau v. Guaranty Trust Co. of New York, 254 App. Div. 835; Carbonello v. Roma Doll Co., Inc., 253 id. 703; Hershenstein v. Union Railway Co., 249 id. 811; Bernfeld v. Kreindler, 233 id. 728; Egan v. New York & Harlem R. R. Co., Id. 838), including actions for malpractice against physicians and [549] dentists (Goodman v. Prentice, 251 App. Div. 713) Levin v. Jeming, 243 id. 517; Laurino v. Pratt, 222 id. 742; Drasner v. Levbarg, 216 id. 833), where the plaintiff has been rendered unconscious by an accident (Kematjian v. Island Cab Co., Inc., 244 App. Div. 704; Massaad v. Stevens, 240 id. 1033), and in other cases where special circumstances existed (Frank v. Bernz Co., Inc., 255 App. Div. 948; Stone v. 136-142 W. 71st St., Inc., 250 id. 704; O’ Neill v. Servel, Inc., Id. 851; Avrach v. Glenshaw Glass Co., 246 id. 509; Sheridan v. Sussex Holding Co., Inc., 244 id. 784; Hollander v. Brown, 233 id. 831; Preiss v. O’Donohue, 173 id. 121) which necessitated an exception to the general rule. The order should be modified by allowing items 2 and 4 of the plaintiff’s notice of motion, as to the character and details of the operations referred to therein, and, as so modified, affirmed, without costs. O’Malley and Townley, JJ., concur; Martin, P. J., and Glennon, J., dissent.