FILED: NEW YORK COUNTY CLERK 04/20/ :08 PM INDEX NO /2013 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/20/2016

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1 FILED: NEW YORK COUNTY CLERK 04/20/ :08 PM INDEX NO /2013 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/20/ of 6

2 4. On August 8, 2014, plaintiff served a bill particulars, a copy of which is annexed hereto as EXHIBIT B. The bill particulars alleges, inter alia, severe lacerations with traumatic amputations of the right 4 th and 5 th digits. Bill of particulars, 9a. The bill particulars also alleges injuries to the ulnar nerve of the right elbow. Id. 9b. The bill particulars further alleges: Right shoulder impingement and instability; right shoulder partial tear of the rotator cuff supraspinatus tendon versus tendinosis; with limitation of motion; with pain and discomfort. Id. 9c. 5. On July 16, 2015, plaintiff was examined by 1890 s medical expert, Dr. Martin Posner, whose report dated August 18, 2015 is annexed hereto as EXHIBIT C. The report details Dr. Posner s review of records from Bellevue Hospital Hand Clinic (page 1) and of Drs. Pae and Podhorodecki (page 2). It is uncontested that Dr. Pae provided plaintiff treatment of his hand injuries and performed surgery for right elbow ulnar nerve decompression. Dr. Podhorodecki performed EDX (electrodiagnostic study) and NCS (nerve conduction study) to evaluate for ulnar nerve entrapment testing. 6. Pursuant to authorization provided by plaintiff, 1890 obtained records of treatment by Dr. Charles DeMarco on November together with report of MRI of the right shoulder, copy of which is annexed hereto as EXHIBIT D. Dr. DeMarco s Assessment on December 3, 2013 is, inter alia, Right rotator cuff supraspinatus partial tear versus tendinosis. DR. POSNER DOES NOT TREAT OR EVALUATE SHOULDER INJURIES 7. By letter dated March 3, 2016 to plaintiff s attorneys, copy of which is annexed hereto as EXHIBIT E, your affirmant advised that based on his CV, Dr. Posner specializes in hand and upper extremity surgery and his report reflects that he evaluated only plaintiff s hand 2 2 of 6

3 and ulnar nerve injuries. Your affirmant also advised that, consistent with his specialty, Dr. Posner did not address plaintiff s claims of right shoulder impingement and instability as alleged in plaintiff s bill of particulars. Your affirmant further advised that Dr. Posner s office has advised us that Dr. Posner does not evaluate shoulders and, if necessary, will provide an affidavit that Dr. Posner is unqualified to render an opinion with respect to the plaintiff s shoulder injury. In view of the foregoing, it was requested that plaintiff submit to a physical examination by an orthopedist limited to plaintiff s shoulder claims. No response was received to this request. 8. Annexed hereto is an affirmation of Dr. Posner who states, inter alia, that in view of his practice specialty in hand surgery, he consider himself unqualified to evaluate and provide expert medical-legal opinions regarding injuries to shoulders, including that of the plaintiff and that in his medical-legal practice, he does not evaluate shoulder injuries, that consistent with the foregoing, his report dated April 18, 2015, which details his examination of plaintiff and his findings, does not include an evaluation or opinion regarding plaintiff s claimed shoulder injuries, nor does his report mention any treatment plaintiff obtained for his claimed shoulder injuries and that although he performed a cursory examination of plaintiff s shoulders, his evaluation was limited solely to plaintiff s hand and ulnar nerve injuries. 9. In view of the foregoing, 1890 is entitled to a physical examination of plaintiff limited to his claims of shoulder injury, since without such examination, 1890 would be extremely prejudice in its inability to offer any evidence in defense of said claim. 10. CPLR 3121 provides: DISCUSSION (a) Notice of examination. After commencement of an action in which the mental or physical condition or the blood 3 3 of 6

4 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. 11. The principle underlying the physical or mental examinations provided for in CPLR 3121 is to attempt to narrow down the areas of medical dispute and ultimately eliminate the controversy surrounding the medical issues in personal injury cases [citation omitted]. 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 A.D.2d 559, (2d Dept., 1995) (all citations omitted.) Further, it is within the trial court's discretion to require a plaintiff to submit to more than one physical examination. Orsos v Hudson Tr. Corp., 95 A.D.3d 526, 526 (1st Dept., 2012). 12. In view of the fact that Dr. Posner s examination and evaluation was limited to plaintiff s hand and ulnar nerve injury claims, 1890 has demonstrated the necessity for a second examination limited to plaintiff s shoulder injury claim. 13. In a case strikingly similar to the case at bar, Marashaj v Rubin, 132 A.D.3d 641 (2d Dept., 2015), the plaintiff allegedly sustained injuries to his neck, shoulders, and left knee as a result of an accident which occurred on premises owned by the defendants. The defendants scheduled orthopedic examinations of the plaintiff to be conducted by Dr. Afshin E. Razi on October 24, 2013, and by Dr. Steven Sclafani on December 9, After Dr. Razi conducted an examination of the plaintiff's spine on October 24, 2013, the plaintiff refused to submit to an orthopedic examination by Dr. Sclafani, contending that the defendants were entitled to only one 4 4 of 6

5 examination by an orthopedic surgeon. The defendants moved pursuant to CPLR 3124, inter alia, to compel the plaintiff to appear for an examination of his left knee conducted by Dr. Sclafani. In an order dated May 20, 2014, the Supreme Court denied that branch of the defendants' motion which was to compel the plaintiff to appear for an examination of his left knee conducted by Dr. Sclafani, and instead directed the plaintiff to appear for an examination of his left knee conducted by Dr. Razi. Thereafter, the defendants moved, inter alia, for leave to renew, submitting an affidavit from Dr. Razi in which he stated that he specialized in injuries to the spine, did not examine or treat patients for knee injuries, and did not feel qualified to perform an examination of the plaintiff's left knee and give a medical opinion as to its condition. The Supreme Court, among other things, denied that branch of the defendants' motion which was for leave to renew, and again directed the plaintiff to appear for an examination of his left knee to be conducted by Dr. Razi. 14. On appeal, the Appellate Division granted defendants motion holding (all citations omitted): The defendants demonstrated that the information obtained from the examination of the plaintiff by Dr. Razi was inadequate with respect to the plaintiff's left knee, and that Dr. Razi was unqualified to render an evaluation of the plaintiff's left knee. Furthermore, the plaintiff failed to allege any basis for challenging the defendants' choice of their designated orthopedist, Dr. Scalfani, such as bias by Dr. Scalfani against him or his attorney, or prejudice against him if Dr. Scalfani is allowed to testify at trial 132 A.D.3d 641, Cf., Giordano v Wei Xian Zhen, 103 A.D.3d 774, 775 (2d Dept., 2013) ( Here, the fact that the defendant's examining physician was arrested and temporarily surrendered his medical license subsequent to his examination of the plaintiff and the filing of the note of issue does not justify an additional examination by another physician. ); Tucker v Bay Shore Stor. Warehouse, Inc., 69 A.D.3d 609, 610 (2d Dept., 2010) ( Here, the defendants failed 5 5 of 6

6 to show that a further physical examination of the plaintiff was required. While we strongly disapprove of the plaintiff's counsel instructing the plaintiff to refuse to respond to questions relating to her relevant past medical history, there was no indication by the defendants' examining physician that his prior examination was hindered, or that he required additional information. ) 15. There is no prejudice to plaintiff in submitting to a second physical examination regarding his shoulder claim. Dr. Posner will not testify as to the shoulder claim and the doctor designated by plaintiff to examine and evaluate plaintiff s shoulder claim will not testify as to the hand and ulnar claim. And, as mentioned, without a second physical examination, 1890 will be considerably prejudiced in not being able to offer any evidence to defend the shoulder claim. WHEREFORE, it is respectfully requested that 1890 s motion be granted in its entirety together with such other and further relief as the court deems just and proper. Dated: April 18, 2016 Brooklyn, NY David Persky L:\DXP\30983 Guaman\MOTIONS\AffInSuppMotIME-ours.docx 6 6 of 6