Chaudhary v. Gold

Order, Supreme Court, New York County (Paul Wooten, J.), entered June 16, 2009, which denied defendants’ motion to compel plaintiff Mohammed Chaudhary to appear at a neuropsychological examination by an expert designated by defendants, or, in the alternative, to preclude plaintiffs from presenting evidence of damages at the time of trial, reversed, on the law and as a matter of discretion, without costs, defendants’ motion granted, and plaintiff is directed to appear for said examination by an expert designated by defendants. Appeal from order, same court and Justice, entered October 13, 2009, denying defendants’ motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable paper. Although “discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested [478] with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]). Here the motion court erred in denying defendants’ motion to compel plaintiff to submit to a neuropsychological examination. Defendants established the significant differences between a neuropsychiatric examination (already conducted by defense expert Fayer) and the proposed neuropsychological examination. Defendants asserted that a neuropsychologist utilizes a different methodology and would administer a standardized battery of psychological tests that would quantify the type of brain injury and the degree of cognitive dysfunction related to possible damage of the brain. By contrast, a neuropsychiatrist focuses on emotional and psychiatric functioning. In support of their motion, defendants submitted an affidavit from a neuropsychologist. That expert stated that his examination of plaintiff would quantify the type of brain injury that he allegedly suffers and would help distinguish between what is functional (i.e., psychiatric depression) or organic (i.e., cognitive dysfunction). He further stated that a neuropsychological examination would provide quantitative data about plaintiff’s functioning, such as his IQ score and memory test score. The expert also stated that his testing could aid in forming an ultimate opinion as to the nature and cause of plaintiffs injury as well as to any symptom amplification or exaggeration, an essential defense for defendant. CPLR 3101 (a) requires the “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Pursuant to. CPLR 3121, following the commencement of an action, if a plaintiffs physical condition is in controversy, the defendant may require the plaintiff to submit to a physical examination (see Koump v Smith, 25 NY2d 287 [1969]). Further, it is within the trial court’s discretion to require a plaintiff to submit to more than one physical examination (see Brown v Metropolitan Transp. Auth., 256 AD2d 17, 18 [1998]). However, the party seeking the examination must demonstrate the necessity for it (see Radigan v Radigan, 115 AD2d 466, 467 [1985]). Defendants have demonstrated that a neuropsychological examination is material and necessary in order to defend against plaintiffs claim that he has suffered head injuries with cognitive impairment (see e.g. Chelli v Banle Assoc., LLC, 22 AD3d 781 [2005], lv denied 7 NY3d 703 [2006]). Concur—Friedman, Catterson and DeGrasse, JJ.