Tedesco v Leonard, 2024 NY Slip Op 06677 [233 AD3d 634]

December 31, 2024

Appellate Division, First Department

[*1]

Anthony Tedesco, Respondent,

v

Thomas Scott Leonard et al., Appellants.

Gallo Vitucci Klar LLP, New York (Joseph Scarglato of counsel), for appellants.

Kuharski Levitz Giovinazzo Law Group, Staten Island (Lonny R. Levitz of counsel), for respondent.

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 AD3d 526 [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 AD2d 145 [1st Dept 1997]; Strauss v New York Ethical Culture Socy. , 210 AD2d 134, 134 [1st Dept 1994]). Concur—Renwick, P.J., González, Rodriguez, Higgitt, Rosado, JJ..