SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1011 

CA 12-00595 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ. 

 

JAQUANDA NERO AND LAQUESHA NERO, INFANTS BY 

THE PARENT AND NATURAL GUARDIAN, FELICIA NERO, 

PLAINTIFFS-RESPONDENTS, 

V MEMORANDUM AND ORDER

ISAAC KENDRICK, ELIZABETH KENDRICK, 

DEFENDANTS-APPELLANTS, 

ET AL., DEFENDANT.

 

BURGIO, KITA & CURVIN, BUFFALO (STEVEN P. CURVIN OF COUNSEL), FOR

DEFENDANTS-APPELLANTS. 

ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Monroe County (Matthew

A. Rosenbaum, J.), entered December 8, 2011. The order, insofar as

appealed from, denied the motion of defendants Isaac Kendrick and

Elizabeth Kendrick for a protective order. 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs and the motion is

granted. 

Memorandum: Isaac Kendrick and Elizabeth Kendrick (defendants),

as limited by their brief, appeal from that part of an order that

denied their motion for a protective order. Specifically, defendants

sought an order “requiring provision of a report by [Jaquanda Nero

(plaintiff)] . . . causally relating an injury to plaintiff’s

ingestion of lead based paint . . . .” Defendants also sought an

order that would allow them “120 days within which to conduct a

defense [medical examination] on behalf of the defendants . . . and

serve any such reports measured from the date of receipt of a report

from an expert retained on behalf of the plaintiff detailing any

injuries sustained by the plaintiff . . . as a result of elevated

blood lead levels . . . .” In denying defendants’ motion, Supreme

Court concluded that it was not authorized pursuant to CPLR 3103 to

order plaintiff to be examined by an expert. We reverse the order

insofar as appealed from and grant defendants’ motion. 

Trial courts have broad discretion in supervising disclosure (see

Carpenter v Browning-Ferris Indus., 307 AD2d 713, 715-716), and CPLR

3103 (a) affords the court the authority to deny, limit, condition or
-2- 1011 

CA 12-00595 

regulate the use of any disclosure device to “prevent unreasonable

annoyance, expense, embarrassment, disadvantage, or other prejudice to

any person or the courts.” Here, the protective order sought by

defendants was appropriate relief. Defendants had previously sought

medical reports from plaintiffs pursuant to 22 NYCRR 202.17 and

plaintiffs responded to that request, but none of the material

provided contained any information concerning any condition, symptom

or problem that plaintiff was experiencing as the result of elevated

blood lead levels, “the physical . . . condition in issue” (Cynthia B.

v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 457). Indeed, the

plaintiff in a personal injury action is under an obligation both to

procure and to produce medical reports relating the claimed injury to

the allegations being made in the litigation (see Kelly v Tarnowski,

213 AD2d 1054). Furthermore, the court had already issued a

scheduling order requiring, inter alia, defendants to conduct a

medical examination of plaintiff by a date certain, and we conclude

that defendants should not be put to the time, expense and effort of

arranging for and conducting a medical examination of plaintiff

without the benefit of reports linking the symptoms or conditions of

plaintiff to defendants’ alleged negligence (see Adams v Rizzo, 13

Misc 3d 1235[A], 2006 NY Slip Op 52135[U], 47-48; see generally Matter

of Andrews v Trustco Bank, Natl. Assn., 289 AD2d 910, 912-913).

Entered: November 9, 2012 Frances E. Cafarell

Clerk of the Court