Upon the foregoing papers, defendant Metropolitan Enterprises, Inc. (MEI) moves, by order to show cause, for an order pursuant to CPLR 3121 compelling plaintiff Brenda Atchison to submit to a further independent orthopedic examination. Defendant New York City Housing Authority (NYCHA) also moves or an order pursuant to CPLR 3121 compelling plaintiff Brenda Atchison to submit to a further independent orthopedic examination.

Plaintiff commenced this action by filing a summons and complaint on February 28, 2011. The pleading indicates that on December 31, 2010, plaintiff suffered injuries as a consequence of a trip and fall accident near the construction/renovation site at 40-09 Vernon Boulevard in Queens. Plaintiff alleges that she tripped over debris on a public sidewalk, and consequently commenced this action against NYCHA (the owner of the premises located at the above address) and MEI (who erected a scaffold near the premises). Plaintiff claims that the debris constituted a hazardous condition created by defendants' negligence, and that, therefore, defendants proximately caused her injuries. Consequently, plaintiff seeks money damages for her injuries.

Defendants interposed answers, and discovery ensued. As relevant to the instant motions, on February 15, 2012, plaintiff submitted to an orthopedic examination conducted by Dr. Michael J. Katz at the request of MEI's insurance carrier. Subsequently, on or about July 3, 2012, MEI served a notice of expert disclosure stating that MEI intended to rely on Dr. Katz's testimony and his expert medical opinion at trial. On January 28, 2013, plaintiff filed a note of issue and certificate of readiness, indicating that both that all discovery is complete and that the instant action is ready for trial.^[FN1]

Thereafter, on July 1, 2013, Justice Duane A. Hart of the Supreme Court of the State of New York in Queens County held a hearing, transcribed by a court reporter, concerning Dr. Katz. Justice Hart ordered the hearing because Dr. Katz had previously testified under oath (in an action unrelated to the instant action) that he performed an IME on the subject plaintiff and that the examination took "between ten to twenty minutes" to complete. However, counsel for the plaintiff had directed a paralegal to accompany the plaintiff to the subject IME and, unbeknownst to both Dr. Katz and counsel for defendants, surreptitiously make an audio recording of the examination. The recording demonstrated that, contrary to Dr. Katz's sworn testimony, the examination only took one minute and fifty-six seconds.

Based on that recording and Dr. Katz's prior testimony, Justice Hart expressed his disbelief that the difference between an examination that lasted "ten to twenty minutes" and one that lasted less than two minutes was an honest mistake. Justice Hart further stated that he was finding that Dr. Katz had lied under oath during the subject proceeding. Justice Hart made several other comments during the hearing, including, among others, that "I can hold him [Dr. Katz] in civil contempt for costing the state to expend thousands of dollars on a trial and then coming in here to lie about what he did, causing a mistrial[,]" "I would like to sanction Dr. Katz . . . I would like to put Dr. Katz out of business of doing IME's period[,]" and "[i]t is like a wound that is festering . . . [e]very time [Dr. Katz] does another IME . . . [w]hen is it going to stop? . . . [h]e is making 7 figures a year [*3]doing IME's [sic] . . . [t]hen he comes to my part and lies."^[FN2]

Justice Hart concluded that he would notify the appropriate authorities concerning Dr. Katz's mendacity and breach of medical ethics. According to defendants, "Justice Hart's public criticism concerning Dr. Katz's testimony with respect to his IME of the plaintiff in the [unrelated Queens Supreme] action has garnered much publicity, namely in various legal news websites and blogs." Consequently, these motions for an order directing plaintiff to submit to a second orthopedic IME ensued.

Each defendant advances, in essence, the same arguments in support of their motions.^[FN3] First, they assert that in the event of special, unusual and extraordinary circumstances after a note of issue is filed, this court has the discretion to order plaintiff to submit to more than one physical examination. More specifically, they claim that the "common thread" of the authority permitting post-note-of-issue further IMEs is the existence of an occurrence that both was out of the control of the party seeking further discovery and causes actual prejudice.

Here, argue defendants, the events of the subject hearing concerning Dr. Katz constitute such an occurrence. Specifically, defendants note that the hearing occurred well after both the IME of plaintiff herein and the filing of the note of issue. Defendants characterize this occurrence as unusual and unforeseen; therefore, conclude defendants, if this court exercises its discretion and directs a second orthopedic IME, this court's disposition would likely be upheld.

Next, defendants point out that Justice Hart's broad comments about Dr. Katz have significant repercussions. Defendants claim that it is impossible to receive a fair trial if they have no choice but to rely solely on Dr. Katz's orthopedic examination results and his opinion. Defendants further note that Justice Hart's comments have "permeated the legal community and . . . garnered . . . media attention." In sum, defendants suggest that since Dr. Katz was retained to perform the orthopedic IME well before Justice Hart's hearing and comments, defendants should thus not be punished as a result of the damage done to Dr. Katz's credibility.

Lastly, defendants state that a trial should be an impartial search for truth, and the same is impossible if a second orthopedic examination is not permitted. Defendants maintain that the second IME is required to ensure that the medical testimony at trial in this action concerns only the nature of plaintiff's injuries and not the character of the physician testifying. Defendants assert that, absent a second examination, they will suffer [*4]substantial prejudice before the jury, since the members will be unable to focus on the content of Dr. Katz's testimony. Defendants reason that the search for truth during trial of this action would thus be thwarted; accordingly, defendants conclude that this court should grant both motions, and issue an order directing plaintiff to appear for a second orthopedic IME.

In opposition to the motions, plaintiff rejects defendants' assertion that the instant facts constitute "special, unusual and extraordinary circumstances" concerning Dr. Katz. Instead, argues plaintiff, defendants are merely concerned that Dr. Katz's credibility and integrity are compromised, and such a concern does not constitute "special, unusual and extraordinary circumstances" that causes substantial prejudice to defendants.

Plaintiff claims that the relevant appellate authority precludes this court from finding extraordinary circumstances in this action. Plaintiff identifies several instances of IME physicians whose integrity and credibility have likely been compromised in various ways (e.g. arrest, surrender of license to practice medicine, professional discipline) yet the denial of a second IME was upheld on appeal. Plaintiff contends that the instant situation is analogous. In sum, plaintiff concludes that "[i]t is clear that the defendant[s'] concern is that plaintiff may impeach Dr. Katz's credibility, which is not a sufficient basis to compel a second examination."

The court, in an exercise of discretion, denies the motions. "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" (Rinaldi v Evenflo Co., Inc., 62 AD3d 856, 856 [2d Dept 2009]), citing Matter of U.S. Pioneer Elec. Corp. [Nikko Elec. Corp.], 47 NY2d 914, 916 [1979] Mattocks v White Motor Corp., 258 AD2d 628, 629 [1999] Kaplan v Herbstein, 175 AD2d 200 [1991]).

CPLR 3121 ("Physical or mental examination") provides, in relevant part, as follows:

"(a) Notice of examination. After commencement of an action in which the mental or physical condition or the blood relationship of a party, or of an agent, employee or person in the custody or under the legal control of a party, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his agent, employee or the person in his custody or under his legal control."

"There is no restriction in CPLR 3121 limiting the number of examinations to which a party may be subjected, and a subsequent examination is permissible where the party seeking the examination demonstrates the necessity for it" (Young v Kalow, 214 AD2d 559, 559 [2d Dept 1995], citing Radigan v Radigan, 115 AD2d 466 [2d Dept [*5]1985] see also Huggins v New York City Tr. Auth., 225 AD2d 732 [1996] Rinaldi, 62 AD3d at 856). Moreover, "after a note of issue has been filed, as in this case, a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination" (Schissler v Brookdale Hosp. Ctr., 289 AD2d 469, 470 [2d Dept 2001], citing 22 NYCRR 202.21; Frangella v Sussman, 254 AD2d 391 [2d Dept 1998]).^[FN4] Examples of "unusual and unanticipated circumstances" include plaintiff undergoing a surgical procedure after filing a note of issue (see e.g. Everhardt v Klotzbach, 306 AD2d 869 [4th Dept 2003]), death of a an expert witness (see e.g. Nathanson v Johnson, 126 AD2d 475, 476 [1st Dept 1987]), expert witness retirement and relocation outside the State of New York (see e.g. Rosado v A & P Food Store, 26 Misc 3d 935, 936 [Sup Ct, Westchester County 2009]), hostility of the expert witness to the parties (see e.g. Miocic v Winters, 75 AD2d 887, 888 [2d Dept 1980]), and potential bias on the part of the physician conducting the IME (see e.g. Orsos v Hudson Tr. Corp., 95 AD3d 526 [1st Dept 2012]).

None of the above situations are analogous to the instant facts. Instead, defendants [*6]are (understandably) concerned that the hearing conducted by Justice Hart may be used to attack Dr. Katz's integrity and/or credibility at trial. This court, however, is bound by the pronouncements of the Appellate Division, which has stated that "[t]he defendants' concern that the plaintiff may impeach the examining physician's credibility . . . [is] not a sufficient basis to compel a second examination" (Carrington v Truck-Rite Dist. Sys. Corp., 103 AD3d 606, 607 [2d Dept 2013], citing Schissler, 289 AD2d at 470; Futersak v Brinen, 265 AD2d 452 [1999]). The instant facts are analogous to the cases of a public attack on the professional credentials of an IME physician; such cases hold that instances of compromised professional integrity do not warrant a subsequent IME (see e.g. Giordano v Wei Xian Zhen, 103 AD3d 774, 775 [2013] [fact that examining physician was arrested and surrendered medical license subsequent to examination and note of issue filing does not justify additional examination] Carrington, 103 AD3d at 607 [same] Schissler, 289 AD2d at 470 [fact that examining physician was subjected to professional discipline subsequent to examination and note of issue filing does not justify additional examination] Futersak, 265 AD2d at 462 [same]). Defendants advance no authority suggesting that the present situation concerning Dr. Katz is distinguishable because he has been accused (as recorded in a court transcript) of perjury.^[FN5]

The court is mindful of defendants' well-taken point that "[t]he modern trend is to view litigation as a search for truth rather than a sporting contest" (Finn v Morgan, 46 AD2d 229, 234 [4th Dept 1974]). However, defendants' fear that jurors will be more concerned with the integrity or credibility of Dr. Katz than with the truth of plaintiff's injury allegations is not a sufficient reason for this court to order plaintiff to submit to an additional IME over a year after filing a note of issue (Carrington 103 AD3d at 607; Giordano, 103 AD3d 775). Therefore, the motions are denied.

In sum, the motion of defendant Metropolitan Enterprises, Inc. for an order compelling plaintiff Brenda Atchison to submit to a further independent orthopedic examination is denied. The motion of defendant New York City Housing Authority for the same relief is also denied.

The foregoing constitutes the decision and order of the court.

February 27, 2014E N T E R,

J. S. C.