Marriott v. Cappello

Smith, J.P.

(dissenting). I respectfully disagree with the majority that defendant or his expert were required to take any action to protect plaintiff’s rights, and I therefore dissent. There is no dispute that plaintiff’s attorney and a nurse accompanied plaintiff to the office of defendant’s expert for the previously scheduled psychological examination, and that plaintiff’s attorney left the office before the examination began. There is no indication that plaintiff’s attorney inquired whether the nurse would be permitted to observe the examination, or that the attorney asked the defense…