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Andrea Ferrucci Wins an Important Appellate Victory

July 16, 2015
By: Frank Scahill

Congratulations to Andrea Ferrucci of our firm, who heads our appellate department, for an important victory in Peculic v Sawicki from the Appellate Division, Second Department decided on June 17, 2015 (2015 NY Slip Op 05168) on appeal of the order of Judge Pineda-Kirwan of Queens County. Here, the plaintiff objected to psychological testing on a claim where the plaintiff alleged post-traumatic stress syndrome. The testing included administration of the Minnesota Multiphasic Personality Inventory-2, as part of the independent neuro-psychological examination. The plaintiff claimed the testing was invasive, citing the rule, "Where the mental or physical condition of a party is in controversy, the party may be required to submit to a medical examination (see Dillenbeck v Hess, 73 NY2d 278, 286-287; D'Adamo v Saint Dominic's Home, 87 AD3d 966, 970). However, a plaintiff who places his or her physical or mental condition in controversy will not be required to undergo an examination or objective testing procedure which is invasive, painful, or presents the possibility of danger to life or health (see D'Adamo v Saint Dominic's Home, 87 AD3d at 970; Lefkowitz v Nassau County Med. Ctr., 94 AD2d 18, 21)." The Appellate Division reversed the trial court, noting, "the plaintiff failed to establish that subjecting herself to the MMPI-2 would be invasive or harmful to her health (see Tidwell v Villaman, 100 AD3d 865, 866; Thomas v Mather Mem. Hosp., 162 AD2d 521, 523). Accordingly, the defendants' motion to compel should have been granted and the plaintiff's cross motion for a protective order should have been denied."

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