At page 775 Demonstrating necessity for further medical examinations5 citing casesCounty (Kurtz, J.), dated August 1, 2012, which denied his motion to compel the plaintiff to submit to an additional orthopedic examination. Ordered that the…
- Harris v. Christian Church of Canarsie, Inc., 147 A.D.3d 818 (N.Y. App. Div. 2d Dep't 2017).publishedCPLR 3121 (a) provides that, where the physical condition of the plaintiff is in controversy, “any party may serve notice on another party to submit to a physical . . . examination by a designated physician.” While there is no restriction…
- Vargas v. City of New York, 146 A.D.3d 917 (N.Y. App. Div. 2d Dep't 2017).published“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” (Giordano v Wei Xian Zhen,…
- Winer v. Aliani, 145 A.D.3d 1063 (N.Y. App. Div. 2d Dep't 2016).publishedHere, the defendants failed to demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify a second IME of the plaintiff (see 22 NYCRR 202.21 [d]; Giordano v Wei Xian Zhen, 10…
- Bermejo v. New York City Health & Hospitals Corp., 135 A.D.3d 116 (N.Y. App. Div. 2d Dep't 2015).publishedFurthermore, 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…
- Sukhova v. Ilyas, 132 A.D.3d 661 (N.Y. App. Div. 2d Dep't 2015).publishedContrary to the defendants’ contention, the trial court providently exercised its discretion in denying those branches of their cross motion which *662 were to compel the plaintiff to submit to a further deposition (see Friel v Papa, 87 AD…
v.
Wei Xian Zhen
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings[*775] 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.