TEDESCO v. LEONARD (2024)

Order, Supreme Court, Bronx County (Patsy Gouldborne, J.), entered on or about March 11, 2024, which granted plaintiff's motion to preclude and denied defendants’ cross-motion to compel plaintiff to appear for a second orthopedic examination, unanimously affirmed, without costs.

The court providently exercised its discretion in granting plaintiff's motion to preclude and denying defendants’ cross-motion seeking a second orthopedic examination.  While CPLR 3121 does not limit the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it (see Orsos v. Hudson Tr. Corp., 95 A.D.3d 526, 944 N.Y.S.2d 514 [1st Dept. 2012]).  Here, defendants failed to show that a further physical examination of plaintiff was required.  All of plaintiff's injuries were known at the time defendants assigned the first orthopedist, and there was no change of circumstances, such as additionally pleaded injuries to a different body part or the unavailability of the orthopedist (see Massachusetts Bay Ins. Co. v. Stamm, 237 A.D.2d 145, 654 N.Y.S.2d 752 [1st Dept. 1997];  Strauss v. New York Ethical Culture Socy., 210 A.D.2d 134, 134, 620 N.Y.S.2d 51 [1st Dept. 1994]).