GIORDANO v. WEI XIAN ZHEN

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Carl GIORDANO, respondent, v. WEI XIAN ZHEN, appellant.

Decided: February 20, 2013

MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ. Cheven, Kelly & Hatzis, New York, N.Y. (William B. Stock of counsel), for appellant. Krentsel & Guzman, LLP, New York, N.Y. (Alex Rybakov of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings 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 A.D.3d 856, 881 N.Y.S.2d 104; Huggins v. New York City Tr. Auth., 225 A.D.2d 732, 733, 640 N.Y.S.2d 199; Young v. Kalow, 214 A.D.2d 559, 625 N.Y.S.2d 231). 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 A.D.2d 469, 470, 735 N.Y.S.2d 412; Frangella v. Sussman, 254 A.D.2d 391, 392, 679 N.Y.S.2d 87). 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 A.D.2d at 470, 735 N.Y.S.2d 412; Futersak v. Brinen, 265 A.D.2d 452, 697 N.Y.S.2d 89).

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