KOLODZIEJSKI v. JASKOLKA (2017)

John KOLODZIEJSKI and Nancy Kolodziejski, Plaintiffs–Respondents, v. Robert JASKOLKA, Defendant–Appellant.

Decided: November 09, 2017

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

Kenney Shelton Liptak Nowak LLP, Buffalo (Aalok J. Karambelkar of Counsel), for Defendant–Appellant. Vinal & Vinal, P.C., Buffalo (Jeanne M. Vinal of Counsel), for Plaintiffs–Respondents.

Defendant moved, inter alia, to compel John Kolodziejski (plaintiff) to undergo a second independent medical examination on the ground that plaintiff allegedly refused to perform certain tests during the initial independent medical examination. Supreme Court denied the motion, and we now affirm.

“While there is no restriction in CPLR 3121 limiting the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it” (Rinaldi v. Evenflo Co., Inc., 62 AD3d 856, 856 [2d Dept 2009] ). Here, the examining physician was able to reach a definitive conclusion as a result of the initial independent medical examination, and she never indicated that her analysis and/or conclusion were affected by plaintiff's alleged refusal to perform certain tests. The court therefore properly declined to compel plaintiff to undergo a second independent medical examination (see Tucker v. Bay Shore Stor. Warehouse, Inc., 69 AD3d 609, 610 [2d Dept 2010]; cf. Young v. Kalow, 214 A.D.2d 559, 559 [2d Dept 1995] ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM:

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