Siepel v. Krywak

Siepel v Krywak 2026 NY Slip Op 05566 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Adam Siepel, respondent, v Daniel Krywak, appellant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2025-05368, (Index No. 627904/23) Francesca E. Connolly, J.P. Linda Christopher Lillian Wan Susan Quirk, JJ. Devitt Spellman Barrett, LLP, Hauppauge, NY (Christi M. Kunzig of counsel), for appellant. Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, NY (Richard M. Steigman of counsel), for respondent. [*1] DECISION & ORDER In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Maureen T. Liccione, J.), dated April 21, 2025. The order denied the defendant's motion pursuant to CPLR 3124 to compel the plaintiff to submit to an additional independent medical examination. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained after being struck by the defendant's vehicle. After the plaintiff served a bill of particulars alleging that he suffered multiple bone fractures and other injuries, he submitted to an independent medical examination (hereinafter IME) by an orthopedic surgeon. Subsequently, the defendant moved pursuant to CPLR 3124 to compel the plaintiff to submit to an additional IME by the same orthopedic surgeon, arguing that the plaintiff's counsel interfered with the orthopedic surgeon's attempt to conduct the IME by advising the plaintiff not to complete an intake form. In an order dated April 21, 2025, the Supreme Court denied the motion. The defendant appeals. CPLR 3121(a) provides that where the physical condition of a party is in controversy, "any party may serve notice on another party to submit to a physical . . . examination by a designated physician." "While there is no restriction in CPLR 3121(a) limiting the number of medical examinations to which a plaintiff may be subjected, a defendant seeking a further examination must demonstrate the necessity for it" (Harris v Christian Church of Canarsie, Inc., 147 AD3d 818, 818). "'The supervision of disclosure and the setting of reasonable 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'" (Tucker v Bay Shore Stor. Warehouse, Inc., 69 AD3d 609, 609-610, quoting Mattocks v White Motor Corp., 258 AD2d 628, 629). Here, the defendant failed to establish that a second physical examination of the plaintiff was necessary (see Bravo v Vargas, 113 AD3d 577, 579; Tucker v Bay Shore Stor. Warehouse, Inc., 69 AD3d at 610). The orthopedic surgeon's report stated that he reviewed the [*2]plaintiff's bill of particulars and medical records, which detailed the plaintiff's injuries, demonstrating that the orthopedic surgeon knew about the plaintiff's medical history in rendering an opinion. Moreover, neither the orthopedic surgeon's report nor his affirmation indicated that an additional physical examination of the plaintiff was required to render a further opinion. Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the defendant's motion to compel the plaintiff to submit to an additional IME. CONNOLLY, J.P., CHRISTOPHER, WAN and QUIRK, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court