Wilkes v. Archibald , 679 N.Y.S.2d 408 ( 1998 )

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Lisa, J.), dated September 29, 1997, which denied their motion to vacate the note of issue and to compel further discovery.

Ordered that the order is affirmed, with costs.

The plaintiff, a pedestrian, allegedly was injured when struck by a vehicle operated by the defendant Donovan Archibald, and commenced the instant action to recover damages for his personal injuries. We agree with the Supreme Court that the defendants are not entitled to conduct a psychiatric examination of the plaintiff since the plaintiff has not made any claim based on aggravation of a preexisting emotional or mental condition and has not used his mental condition to excuse his conduct (see, Dillenbeck v Hess, 73 NY2d 278; Sternberger v Offen, 138 AD2d 480). The results of a psychiatric examination of the plaintiff at this time are neither material nor necessary to the defense of this action (see, Sternberger v Offen, supra). Bracken, J. P., Ritter, Copertino, Santucci and Altman, JJ., concur.