Justice Francois Rivera
Fougner sought damages for personal injuries allegedly sustained in a fall. In 2011, she underwent arthroscopic surgery of her right shoulder. The court directed her to submit to an independent medical exam (IME) by January 15, 2012. On January 12, 2012, she submitted to an orthopedic examination at Dr. Zaretsky’s office. He opined that Fougner’s surgery prevented him from conducting a full exam due to her complaints of pain and he suggested she should be re-examined in four months. By letter dated February 9, 2012, defendants served Zaretsky’s affirmed report on Fougner with notice that they were reserving their right to conduct a further orthopedic examination. Fougner notified defendants by letter dated February 13, 2012 that she would not consent to an examination. Defendants then sought to compell her to submit under CPLR 3121(a), contending Zaretsky’s affirmed medical report provides a basis from which the court may compel Fougner to an additional IME. The court denied the motion, holding defendants were required to either move to vacate the note of issue or submit an affidavit showing unusual or unanticipated circumstances developed after the filing which would warrant an additional IME to prevent prejudice.
