Tedesco v Leonard (2024 NY Slip Op 06677)
Tedesco v Leonard
2024 NY Slip Op 06677
Decided on December 31, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: December 31, 2024 Before: Renwick, P.J., González, Rodriguez, Higgitt, Rosado, JJ.
Index No. 28367/20 Appeal No. 3355 Case No. 2024-02147
[*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]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 31, 2024
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