Giordano v. Wei Xian Zhen

103 A.D.3d 774, 959 N.Y.S.2d 545

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2013
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated August 1, 2012, which denied his motion to compel the plaintiff to submit to an additional orthopedic examination.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the defendant’s motion to compel the plaintiff to submit to an additional orthopedic examination. While there is no restriction in CPLR 3121 (a) limiting the number of medical examinations to which a plaintiff may be subjected, a defendant seeking a further examination must demonstrate the necessity for it (see Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]; Huggins v New York City Tr. Auth., 225 AD2d 732, 733 [1996]; Young v Kalow, 214 AD2d 559 [1995]). In addition, after a note of issue has been filed, as in this case, a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination (see 22 NYCRR 202.21; Schissler v Brookdale Hosp. Ctr., 289 AD2d 469, 470 [2001]; Frangella v Sussman, 254 AD2d 391, 392 [1998]). Here, the fact that the defendant’s examining physician was arrested and temporarily surrendered his medical license subsequent to his examination of the plaintiff and the filing of the note of issue does not justify an additional examination by another physician. The defendant’s concern that the plaintiff may impeach the examining physician’s credibility with this information is not a sufficient basis to direct a second examination (see Schissler v Brookdale Hosp. Ctr., 289 AD2d at 470; Futersak v Brinen, 265 AD2d 452 [1999]). Dillon, J.P., Hall, Roman and Cohen, JJ., concur.