| Tucker v Bay Shore Stor. Warehouse, Inc. |
| 2010 NY Slip Op 00134 [69 AD3d 609] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Christine Tucker, Respondent, v Bay Shore StorageWarehouse, Inc., et al., Appellants. |
—[*1] Siben & Siben LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.),entered March 9, 2009, as denied those branches of their motion which were to compel theplaintiff to undergo a further examination by their neurologist and to direct the plaintiff, as partof the examination, to answer all of their neurologist's questions concerning her medical history.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the defendants' contentions, the Supreme Court did not improvidently exerciseits discretion in denying that branch of their motion which was to compel the plaintiff to undergoa second independent medical examination. "The supervision of disclosure and the setting ofreasonable terms and conditions therefor rests within the sound discretion of the trial court and,absent an improvident exercise of that discretion, its determination will not be disturbed"(Mattocks v White Motor Corp., 258 AD2d 628, 629 [1999] [citations omitted]; seeKaplan v Herbstein, 175 AD2d 200 [1991]). While CPLR 3121 does not limit the number ofexaminations to which a party may be subjected, a party seeking a further examination mustdemonstrate the necessity for it (see Young v Kalow, 214 AD2d 559 [1995]; see alsoHuggins v New York City Tr. Auth., 225 AD2d 732 [1996]). Here, the defendants failed toshow that a further physical examination of the plaintiff was required. While we stronglydisapprove of the plaintiff's counsel instructing the plaintiff to refuse to respond to questionsrelating to her relevant past medical history, there was no indication by the defendants'examining physician that his prior examination was hindered, or that he required additionalinformation. Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.