Martinez v. KSM Holding Ltd. , 741 N.Y.S.2d 519 ( 2002 )

—Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered December 18, 2001, which, in an action for personal injuries allegedly sustained as a result of lead paint poisoning, inter alia, denied defendants’ motion for further disclosure, unanimously affirmed, without costs.

Defendants seek disclosure of the complete files of four experts retained by plaintiffs, three psychologists and a neuropsychiatrist, who performed what defendants describe as “psychological, neuro-psychological, IQ, achievement, behavioral observations, general intellectual functioning, verbal reasoning, abstract/visual reasoning, quantitative reasoning, short-term memory and social/emotional testing.” With regard to such experts, plaintiffs more than complied with their disclosure obligations by providing not only the information called for in CPLR 3101 (d) (1) (i) but also a copy of each expert’s report. There being no support for defendants’ assertion that the files were prepared for purposes other than litigation, the files are exempt from disclosure under CPLR 3101 (d) (2), unless defendants can show that they have a “substantial need” for the files and cannot obtain the substantial equivalent thereof by other means without “undue hardship,” or that “special circumstances” exist within the meaning of CPLR 3101 (d) (1) (iii) necessitating production of the files. No such showings are made. While the “raw data” that defendants claim to need may be open to interpretation, the substantial equivalent thereof can be obtained by means other than turning over plaintiffs’ experts’ files. Indeed, defendants failed to take advantage of a preliminary conference order giving them the right to conduct neuro-psychological testing, and then, while attempting to compel disclosure of the files, declined plaintiffs’ offer to submit to examinations by a neuro-psychologist, who, it appears, could have conducted tests equivalent to those performed by plaintiffs’ experts. Concur—Saxe, J.P., Buckley, Rosenberger, Friedman and Marlow, JJ.