Ponce v. Health Insurance Plan , 100 A.D.2d 963 ( 1984 )

In a medical malpractice action, plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated May 31, 1983, as, (1) upon the motion of defendants Flatbush Medical Group, Lev and Solome, directed Marta Ponce to submit to a psychiatric examination by a physician designated by said defendants, and (2) upon the cross motion of defendants Anesthesiology Associates and Abel, directed Marta Ponce to submit to a neurological examination by a physician designated by said defendants. 11 Order, insofar as it directed Marta Ponce to submit to a psychiatric examination by a physician designated by defendants Flatbush Medical Group, Lev and Solome, affirmed, without costs or disbursements. I Order, insofar as it directed Marta Ponce to submit to a neurological examination by a physician designated by defendants Anesthesiology Associates and Abel, affirmed, without costs or disbursements, on condition that the attorneys for said defendants personally pay plaintiffs the sum of $1,500 within 20 days after service upon them of a copy of the order to be made hereon, with notice of entry. In the event the condition is not complied with, then the order is reversed, insofar as it permitted said neurological examination, with costs, and that part of the motion of defendants Anesthesiology Associates and Abel is denied. H The examinations shall proceed at times and places to be fixed in written notices of not less than 10 days, to be given by the respective groups of defendants, or at such other times and places as the parties may agree. The examinations shall be completed within 45 days after service upon respondents of a copy of the order to be made hereon, with notice of entry. 11 Under the circumstances of this case, including the magnitude of the injuries claimed and the failure of plaintiffs to demonstrate prejudice, Special Term properly directed the examinations at issue. However, in light of the defaults of defendants Abel and Anesthesiology Associates, their examination of Marta Ponce should have been conditioned on the payment by their attorneys of $1,500. 11 Marta Ponce is entitled to be examined in the presence of her attorney or other legal representative, as well as an interpreter, if necessary, so long as they do not interfere with the conduct of the examinations (see Jakubowski.v Lengen, 86 AD2d 398; see, also, Matter of Alexander L., 60 NY2d 329, 332); we warn respondents and their physicians against repeating their earlier attempt to exclude them. Lazer, J. P., Niehoff, Boyers and Lawrence, JJ., concur.