45 Misc. 2d 283 | N.Y. Sup. Ct. | 1965
In this personal injury negligence action defendant moves for a protective order to the extent of vacating plaintiffs’ notice that defendant submit to a physical examination pursuant to CPLR 3121. This motion is granted in the exercise of discretion even though the present application was made more than five days after the service of the notice, since this motion may be one of first impression in this court.
No pleadings have been presented to the court nor has a sufficient factual showing been made in the papers to indicate that defendant’s physical condition is in controversy in this case. The fact that defendant testified on an examination before trial that while making a left turn he did not see the infant plaintiff on a bicycle, prior to or at the time his automobile came in contact with him, does not spell out an affirmative showing that defendant lacked peripheral vision or that his vision was otherwise defective, nor does it indicate that his physical condition is really and genuinely in controversy (cf. Schlagenhauf v. Holder, 379 U. S. 104).
While CPLR 3101 calls for full disclosure of all evidence material and necessary in the prosecution of an action and 3121 authorizes a physical examination of a party to an action in which his physical condition is “in controversy ”, nevertheless,
