| Lewis v John |
| 2011 NY Slip Op 06217 [87 AD3d 564] |
| August 9, 2011 |
| Appellate Division, Second Department |
| Veronica Lewis et al., Respondents, v Anthony F. John etal., Appellants, et al., Defendant. |
—[*1] Robert K. Marchese, Esq., P.C., Staten Island, N.Y. (Elizabeth Mark Meyerson of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the defendants Anthony F. Johnand Takis Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Sweeney, J.), dated January 13, 2011, as denied their motion to strike theplaintiffs' second and third supplemental bills of particulars or, in the alternative, to preclude theplaintiffs from offering any evidence or testimony with respect to knee surgery performed on theplaintiff Veronica Lewis, unless that plaintiff appeared for a physical examination by Dr. StevenRobbins, to the extent of directing the plaintiff Veronica Lewis to appear, within 45 days of theorder, for a further physical examination to be conducted by Dr. Lisa Nason, rather than Dr.Steven Robbins.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, and the motion of the defendants Anthony F. John and Takis Corp. tostrike the plaintiffs' second and third supplemental bills of particulars or, in the alternative, topreclude the plaintiffs from offering any evidence or testimony with respect to the knee surgeryperformed on the plaintiff Veronica Lewis is granted unless the plaintiff Veronica Lewis appearsfor an examination to be conducted by Dr. Steven Robbins within 45 days of service upon theplaintiffs of a copy of this decision and order.
The plaintiff Veronica Lewis (hereinafter the injured plaintiff) and her husband, suingderivatively, commenced this action against, among others, the defendants Anthony F. John andTakis Corp. (hereinafter together the defendants) to recover damages allegedly sustained as aconsequence of a motor vehicle accident, which occurred on September 23, 2008. The plaintiffsalleged, in their initial verified bill of particulars, dated October 6, 2009, and their firstsupplemental bill of particulars, dated October 28, 2009, that the injured plaintiff sustainedinjuries to her neck, back, left shoulder, and left hand as a result of the defendants' negligence.
On April 1, 2010, the injured plaintiff was examined, at the defendants' request, by Dr. LisaNason, an orthopedist. Thereafter, on April 28, 2010, the plaintiffs filed a note of issue and [*2]certificate of readiness.
In October 2010 the plaintiffs served a second supplemental verified bill of particulars and athird supplemental verified bill of particulars, in which they alleged that, as a result of thedefendants' negligence, the injured plaintiff sustained medial and lateral meniscal tears to herright knee, requiring a surgical repair. The defendants served upon the plaintiffs a request for anadditional orthopedic examination of the injured plaintiff, to be conducted by Dr. StevenRobbins. The plaintiffs objected to the examination solely on the basis that it should beconducted by Dr. Nason, who performed the first orthopedic examination on behalf of thedefendants, and not by Dr. Robbins.
The defendants moved to strike the plaintiffs' second and third supplemental bills ofparticulars or, in the alternative, to preclude the plaintiffs from offering any testimony orevidence with respect to the injured plaintiff's knee surgery unless the injured plaintiff appearedfor an examination by Dr. Robbins. The plaintiffs opposed the motion only to the extent that theyargued that Dr. Nason, rather than Dr. Robbins, should conduct the further orthopedicexamination of the injured plaintiff.
The Supreme Court denied the defendants' motion on the condition that the injured plaintiffappear for an examination by Dr. Nason within 45 days of its order. The defendants appeal, andwe reverse the order insofar as appealed from.
Contrary to the plaintiffs' contention, the defendants were aggrieved by the order of theSupreme Court (see CPLR 5511; AMS Prods., LLC v Signorile, 66 AD3d 929 [2009]; Unitrin Advantage Ins. Co. v Duclaire,49 AD3d 863 [2008]).
"While discovery determinations rest within the sound discretion of the trial court, theAppellate Division is vested with a corresponding power to substitute its own discretion for thatof the trial court, even in the absence of abuse" (Andon v 302-304 Mott St. Assoc., 94NY2d 740, 745 [2000]; see ThoseCertain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845[2008]). CPLR 3121 (a) provides that, where the physical condition of the plaintiff is incontroversy, "any party may serve notice on another party to submit to a physical. . . examination by a designated physician" (emphasis added). Although aplaintiff may challenge a defendant's choice of an examining physician, the challenge must bebased upon a claim of bias against the plaintiff or his or her attorney by the designated examiningphysician (see Noteboom v Shugrue, 306 AD2d 453 [2003]) or prejudice against theplaintiff if that examining physician is allowed to testify at trial (see Whipple v Edward P.Myers, D.D.S., P.C., 234 AD2d 833 [1996]).
Here, there was no evidence that Dr. Robbins was biased against the plaintiffs or theircounsel, or that the plaintiffs would be prejudiced if Dr. Robbins, rather than Dr. Nason,performed the second orthopedic examination. As such, it was an improvident exercise ofdiscretion for the Supreme Court to require the defendants to utilize Dr. Nason for the secondorthopedic examination of the injured plaintiff instead of their designated physician, Dr. Robbins(see CPLR 3121 [a]). Mastro, J.P., Chambers, Austin and Cohen, JJ., concur.