Summary
In Carrington, the factors favoring a second examination were much stronger, in that the examining physician had been arrested and compelled to surrender his medical license.
Summary of this case from Rios v. 1146 Ogden LLCOpinion
2013-02-6
Randy CARRINGTON, respondent, v. TRUCK–RITE DIST. SYSTEMS CORP., et al., appellants.
Cheven, Keely & Hatzis, New York, N.Y. (Thomas Torto of counsel), for appellants. Taubman Kiemelman & Soroka, LLP, New York, N.Y. (Antonette M. Milcetic of counsel), for respondent.
Cheven, Keely & Hatzis, New York, N.Y. (Thomas Torto of counsel), for appellants. Taubman Kiemelman & Soroka, LLP, New York, N.Y. (Antonette M. Milcetic of counsel), for respondent.
MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the defendants appeal, by permission, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kurtz, J.), dated May 8, 2012, as denied that branch of their application which was to compel the plaintiff to submit to an additional orthopedic examination.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying that branch of the defendants' application which was to compel the plaintiff to submit to an additional orthopedic examination. While there is no restriction in CPLR 3121(a) limiting the number of 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 A.D.3d 856, 881 N.Y.S.2d 104;Huggins v. New York City Tr. Auth., 225 A.D.2d 732, 733, 640 N.Y.S.2d 199;Young v. Kalow, 214 A.D.2d 559, 625 N.Y.S.2d 231). 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 ( see22 NYCRR 202.21; Schissler v. Brookdale Hosp. Ctr., 289 A.D.2d 469, 470, 735 N.Y.S.2d 412;Frangella v. Sussman, 254 A.D.2d 391, 392, 679 N.Y.S.2d 87). Here, the fact that the defendants' 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 did not justify an additional examination by another physician. The defendants' concern that the plaintiff may impeach the examining physician's credibility with this information was not a sufficient basis to compel a second examination ( see Schissler v. Brookdale Hosp. Ctr., 289 A.D.2d at 470, 735 N.Y.S.2d 412;Futersak v. Brinen, 265 A.D.2d 452, 697 N.Y.S.2d 89).