Bobka v. Mann9/22/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Submitted - June 17, 2003
DECISION & ORDER
(Index No. 17048/99)
In an action to recover damages for medical malpractice, etc., the defendants appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Suffolk County (Dunn, J.), dated August 8, 2002, as denied their motion to compel the plaintiff Florence Bobka to submit to a urodynamic study, and (2) an order of the same court dated December 3, 2002, which denied their motion for leave to reargue.
ORDERED that the appeal from the order dated December 3, 2002, is dismissed, as no appeal lies from an order denying reargument; and it is further,
(*2) ORDERED that the order dated August 8, 2002, is affirmed insofar as appealed from, and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
Where a plaintiff has put her physical state at issue and displays symptoms which simultaneously are serious, complex, and perplexing, she may be compelled to undergo additional objective testing procedures which are safe, painless, and noninvasive (see Lapera v Shafron, 159 AD2d 614, 614-615; see also Lefkowitz v. Nassau County Med. Ctr., 94 AD2d 18). Here, the urodynamic study sought by the defendants is potentially harmful due to a risk of infection, and is clearly invasive. Accordingly, the Supreme Court properly denied the defendants' motion to compel the plaintiff Florence Bobka to submit to the testing (see Marino v. Pena, 211 AD2d 668; Lapera v. Safron, supra; Lefkowitz v. Nassau County Med. Ctr., supra; CPLR 3121).
SMITH, J.P., LUCIANO, H. MILLER and ADAMS, JJ., concur.
Motion by the plaintiffs on appeals from two orders of the Supreme Court, Suffolk County, dated August 8, 2002, and December 3, 2002, respectively, inter alia, to strike the record on the appeals and the appellants' brief on the ground that the order dated December 3, 2002, is an order denying reargument, which is not appealable. By decision and order on motion dated April 4, 2003, that branch of the motion which was to strike the record on the appeals and the appellants' brief was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission of the appeals.
Upon the papers filed in support of the motion and the papers filed in opposition (*3)thereto, and upon the argument of the appeals, it is
ORDERED that the motion is denied.
SMITH, J.P., LUCIANO, H. MILLER and ADAMS, JJ., concur.
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