Opinion
March 25, 1996
Appeal from the Supreme Court, Kings County (Jackson, J.).
Ordered that the appeal from that portion of the order which denied that branch of the cross motion which was for a further deposition of the plaintiff is dismissed, without costs or disbursements; and it is further,
Ordered that the order is modified by deleting therefrom the provision which denied that branch of the appellant's cross motion which was for an additional independent psychiatric examination of the plaintiff and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements. The psychiatric examination shall take place at such time and place as shall be fixed in a written notice by the appellant of not less than 20 days. The time within which the appellant may serve such a notice is extended until 20 days after service upon it by the plaintiff's attorney of a copy of this decision and order with notice of entry.
The appellant's motion insofar as it sought a further deposition of the plaintiff concerning questions objected to at his examination before trial was, in effect, an application seeking a ruling on an examination before trial, and an order made upon such an application is not appealable as of right ( see, Cruz v Roman Catholic Church for Most Holy Trinity, 222 A.D.2d 395; Forte v Franklin Gen. Hosp., 185 A.D.2d 914). We decline to grant the appellant leave to appeal from that portion of the order which denied its request for an additional deposition of the plaintiff.
There is no restriction in CPLR 3121 limiting the number of physical or mental examinations to which a party may be subjected, and a subsequent examination is permissible where the party seeking the examination demonstrates the necessity for it ( see, Young v Kalow, 214 A.D.2d 559). We conclude that the appellant established a need for a further independent psychiatric examination of the plaintiff in view of his allegations as to the duration and severity of his psychiatric injuries in his supplemental bill of particulars, which was served two years after his examination by the appellant's expert ( see generally, Korolyk v Blagman, 89 A.D.2d 578). By retaining the matter on the trial calendar, the plaintiff will suffer no prejudice as a result of submitting to an additional examination ( see, D'Amico v Nuzzo, 122 A.D.2d 246). Bracken, J.P., Rosenblatt, O'Brien and Goldstein, JJ., concur.