Spann v. Ellis

In a negligence action to recover damages for personal injuries, the defendant Philippe N. Ellis appeals from an order of the Supreme Court, Richmond County (Amann, J.), dated April 3, 1986, which, inter alia, denied his motion to compel the plaintiff to submit to a further physical examination. Ordered that the order is reversed, with costs, and the motion is granted. The examination shall be held at a time and place to be specified in a notice of not less than 10 days to be given by the defendant Ellis to the plaintiff. On this record, in view of the additional injury to the lower back alleged in the plaintiff’s supplemental bill of particulars, the court should have exercised its discretion to grant the request of the defendant Ellis for an additional physical examination by an orthopedist of the plaintiff with regard to her lower back (see, Cassavecca v Airport Transp. Serv., 110 AD2d 804; Buerger v County of Erie, 101 AD2d 1025; Miocic v Winters, 75 AD2d 887; 3A Weinstein-Korn-Miller, NY Civ Prac ¶ 3121.04). Mangano, J. P., Bracken, Niehoff, Kooper and Spatt, JJ., concur.