FALLON v. TANGUARY (2001)

Supreme Court erred in denying defendant's motion to compel plaintiff to submit to a second examination by a physician in this personal injury action.   Plaintiff initially was examined by a neurologist who recognized her as a nurse with whom he had occasionally worked during the past eight or nine years.   After conducting the examination but before preparing a report, the neurologist advised defendant's attorney of his relationship with plaintiff and his concern that the examination was not “a truly independent evaluation.”   Defendant sought plaintiff's consent to an examination by another physician and, upon plaintiff's refusal to consent, defendant moved to compel a second examination of plaintiff. At the hearing on the motion, the neurologist testified unequivocally that he was biased in favor of plaintiff and that before conducting the examination he had a fixed opinion that plaintiff was truthful, trustworthy and honest.   He further testified that his bias in favor of plaintiff would affect his ability to interpret his findings concerning the nature and extent of her alleged injuries.   Under the circumstances of this case, we conclude that the neurologist's examination and conclusions would “necessarily be tainted with * * * bias and partiality” (Miocic v. Winters, 75 A.D.2d 887, 888, 428 N.Y.S.2d 44;  cf., Korolyk v. Blagman, 89 A.D.2d 578, 579, 452 N.Y.S.2d 445).   We therefore reverse the order and grant defendant's motion.

Order unanimously reversed on the law without costs and motion granted.

MEMORANDUM: