Bilhorn v. Lipman

Order unanimously reversed, with costs, and motion denied. Memorandum: This is the fourth appeal involving pretrial proceedings in this action brought against a physician, Earl S. Lipman (Lipman), a pharmacy, Mead Drugs, Inc. (Mead), and a drug manufacturer, SmithKline Corporation (SmithKline), for injuries allegedly resulting from the use of the drug, stelazine, by plaintiff Grace Bilhorn. Special Term granted a motion made by defendant Lipman on November 17, 1978 for a physical examination of plaintiff Grace Bilhorn even though a statement of readiness had been filed on January 18, 1978. The granting of the motion was improper as defendant Lipman made no showing of special, unusual or extraordinary circumstances to support his untimely application (see Giddens v Moultrie, 66 AD2d 993 and Doll v Kleinklaus, 66 AD2d 1003). Plaintiff Grace Bilhorn is now 76 years of age and has been physically examined by physicians on behalf of defendant SmithKline on three occasions. The record shows that their medical reports, as well as the medical reports of plaintiff’s examining physicians, are available to defendant Lip-man. Therefore, the denial of defendant Lipman’s motion for a physical examination should not impair his ability to present a defense at trial. (Appeal from order of Monroe Supreme Court—discovery.) Present—Dillon, P. J., Hancock, Jr., Schnepp, Doerr and Moule, JJ.