![]() Noting that “here is a relative paucity of cases dealing with the propriety of ordering a second examination due to the unavailability of the first examining physician at trial, the court followed the reasoning of the Appellate Division, Second Department, in Korolyk v. ![]() As a result, defendant sought an order to compel the plaintiff to submit to a further examination by a newly designated physician. After note of issue had been filed with the court, the physician who originally examined the plaintiff for the defense suddenly moved out of state due to family medical reasons and informed defendant that he would not be available to testify at any future scheduled trial. In that cases the plaintiff was a customer in defendant’s store and was injured when she fell therein. A & P Food Store, 26 Misc3d 935 (Sup Ct, Westchester Co., 2009), was confronted with just such an issue. In some cases, a party may request an additional examination of the party previously examined by a different physician due to the unavailability of the initial examining physician to testify at trial. In affirming that decision, the Appellate Division held that: “The general trend of the practice in personal injury cases is to attempt to narrow down the areas of medical dispute, and the aim is, ultimately, with the assistance of the medical profession, to eliminate most of the controversy on the medical side of personal injury cases”. Vaught, 2 AD2d 156, ( 3rd Dept., 1956), the trial court granted the defendant’s motion seeking a physical examination of the plaintiff conditioned on the requirement that a copy of the examining physician’s report be forwarded to the attorney for the plaintiff. A copy of the examining physician’s “detailed written report” containing his findings and conclusions will be furnished to the party who sought the examination who, in turn, is required to provide a copy to any other party upon request. However, it cannot take place less than 20 days after the notice is served. (CPLR §3121) The party to be examined will receive a notice from the party seeking the examination providing the time, location and name of the designated physician as well as the conditions and scope of the examination. In personal injury cases where a party’s mental or physical condition “is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician”.
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