| Gitto v Scamoni |
| 2009 NY Slip Op 04152 [62 AD3d 1232] |
| May 28, 2009 |
| Appellate Division, Third Department |
| Franklin Gitto et al., Appellants, v Salvatore Scamoni,Respondent. |
—[*1] Law Office of Thomas K. Moore, White Plains (Joseph M. Nico of counsel), forrespondent.
Peters, J.P. Appeal from an order of the Supreme Court (Sackett, J.), entered June 5, 2008 inSullivan County, which granted defendant's motion to compel discovery.
Plaintiff Franklin Gitto (hereinafter plaintiff) was allegedly injured in an automobile accidentinvolving defendant. Defendant demanded that plaintiff appear for independent neurological andorthopedic examinations. Although plaintiff underwent a neurological evaluation, he did notappear for a separate orthopedic examination. Defendant moved to compel plaintiff to attend,Supreme Court granted the motion, and plaintiffs appeal.
There is no restriction on the number of examinations to which a party may be subjectedpursuant to CPLR 3121 (a), but a second examination will only be permitted if its necessity canbe demonstrated by the party seeking it (see Hilts v Board of Educ. of Gloversville Enlarged School Dist., 50AD3d 1419, 1420 [2008]). In this case, plaintiff allegedly suffered both neurological andorthopedic injuries, and the first independent examination was a neurological one performed by aneurologist. Plaintiffs do not claim that they will be prejudiced if an orthopedic examinationoccurs. In contrast, defendant may suffer prejudice if such an examination is prohibited, as it isundisputed that defendant has noticed experts in both neurology and orthopedics for trial. Underthese circumstances, Supreme Court did not abuse its discretion in directing plaintiff to undergoan orthopedic examination (see Streicker v Adir Rent A Car, 279 AD2d 385, 385 [2001];Dominguez v Manhattan & Bronx Surface Tr. Operating [*2]Auth., 168 AD2d 376, 376-377 [1990]).
Rose, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the order is affirmed, withcosts.