Practice point: The Appellate Division reversed the granting of defendants' motion to direct plaintiff to appear for a further independent medical examination (IME) by a physician designated by defendants.
While CPLR 3121 does not limit the number of examinations to which a plaintiff may be subjected, a defendant seeking a further examination must demonstrate the necessity for it. In addition, after a note of issue has been filed, as here, a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination.
Student note: The fact that defendants' examining physician was placed on a three-year suspension subsequent to his examination of plaintiff and the filing of the note of issue does not justify an additional examination by another physician. Defendants made no showing of unusual and unanticipated circumstances, as the bill of particulars was served before the IME, and there were no allegations of new or additional injuries.
Case: Rebollo v. Nicholas Cab Corp., NY Slip Op 00978 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: An appeal from a judgment entered upon a default.
