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ABRAHAM EDELMAN v. HOLMES PRIVATE AMBULANCES (04/28/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


April 28, 1969

ABRAHAM EDELMAN, RESPONDENT,
v.
HOLMES PRIVATE AMBULANCES, INC., APPELLANT

In an action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated March 13, 1968, which, on plaintiff's motion, directed that defendant be precluded from having its physician testify at the trial of the action unless a copy of the physician's report be served upon plaintiff at least 30 days prior to the trial.

Rabin, Acting P. J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.

The report of defendant's physician, based solely on the hospital records and not on a physical or clinical examination of plaintiff, is not available to plaintiff as part of the conventional exchange of medical information in a negligence action (CPLR 3121; Freiman v. Miller, 28 A.D.2d 1126). Failure by defendant to serve such a medical report on plaintiff, under these circumstances, would not preclude the testimony of the physician at the trial (Smith v. Schulman, 28 A.D.2d 922, 923).

Disposition

Order reversed, on the law and facts, without costs, and motion denied.

19690428

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