Orsos v. Hudson Transit Corp. , 944 N.Y.S.2d 514 ( 2012 )

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered March 24, 2011, which granted defendants’ motion to vacate the independent medical examination (IME) conducted by Dr. Andrew Hecht, and directed plaintiff to appear for another IME, affirmed, without costs.

“Pursuant to CPLR 3121, following the commencement of an action, if a plaintiffs physical condition is in controversy, the defendant may require the plaintiff to submit to a physical examination. Further, it is within the trial court’s discretion to require a plaintiff to submit to more than one physical examination. However, the party seeking the examination must demonstrate the necessity for it” (Chaudhary v Gold, 83 AD3d 477, 478 [2011] [citations omitted]; Tucker v Bay Shore Stor. Warehouse, Inc., 69 AD3d 609 [2010]).

Plaintiff, in her affidavit in opposition to defendants’ motion to vacate, states that defendants’ designated physician, Dr. Hecht, upon completion of the examination, recommended that, once the litigation was over, she see his partner for follow-up care. This statement reflects potential bias on the part of the physician, which tainted his report of his findings. Accordingly, a second examination by a different physician is permissible to ensure that the focus of the medical testimony will be on the nature and extent of plaintiffs alleged injuries, rather than on any taint or irregularity in the first examination.

The dissent agrees that plaintiff should be directed to appear for another IME, but would find that the court abused its discretion in disallowing discovery of the IME conducted by Dr. Hecht. However, although CPLR 3121 (b) and 22 NYCRR 202.17 (c) provide that copies of the IME report shall be served on the other parties, the court has discretion to direct otherwise, and, under 22 NYCRR 202.17 (j), any party may move to be relieved from compliance. Here, the court did not improvidently exercise its discretion when it vacated the IME. Unlike Comunale v Sealand, Contrs. Corp. (2 Misc 3d 672 [2004]), on which the dissent relies, this is not a case where a defendant, without justification, seeks to manipulate the system to avoid the production of an unfavorable IME report “simply by designating the doctor as a consultant or not having the doctor prepare a written report” (2 Misc 3d at 674).

The dissent also believes that Dr. Hecht’s suggestion that plaintiff see his partner for follow-up care, while perhaps inappropriate, did not amount to bias. However, as the motion court found, Dr. Hecht’s recommendation “gives rise to an appearance of self dealing, and partiality with resulting prejudice to the defendants’ detriment” (emphasis added), which is all that is required to sustain the exercise of the court’s discretion (see Miocic v Winters, 75 AD2d 887, 888 [1980]). In Miocic, defendant sought the re-examination of plaintiff by a different physician because the first physician was a close friend of plaintiff’s counsel. Although the doctor maintained that the friendship would not color his opinion, the court found that “[n]o matter how objectively and thoroughly [the doctor] might now act, such actions would necessarily be tainted with the appearance of bias and partiality” (id.). Here too, it cannot be determined to what extent, if any, Dr. Hecht’s solicitation of plaintiff influenced his report or whether his independence was compromised. Concur — Andrias, Renwick and Freedman, JJ.