Janik v. Erie Lackawanna Railway Co. , 410 N.Y.S.2d 476 ( 1978 )

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: On this appeal defendant contends that plaintiff should be precluded from offering at trial testimony and medical reports of plaintiff’s specialist, Dr. Perese, or in the alternative, that it should be allowed a second physical examination of plaintiff. Defendant asserts that it was not properly served with a medical report by Dr. Perese containing evidence of "further or subsequently discovered injuries” pursuant to subdivision (e) of section 1024.25 of the Rules of the Supreme Court, Appellate Division, Fourth Department. (22 NYCRR 1024.25 [e].) Plaintiff contends that the report of Dr. Perese does not show a further subsequent injury sufficient to trigger the preclusion remedy of 22 NYCRR 1024.25 (g). Inasmuch as a prior physical examination by defendant’s specialist is now over four years old, defendant should be allowed a second physical examination of plaintiff (see Conforti v Central School Dist. No. 3 of Towns of Lloyd, Marlboro, New Paltz and Esopus, 284 App Div 1084). (Appeal from order of Erie Supreme Court—discovery, etc.) Present—Moule, J. P., Cardamone, Simons, Dillon, and Hancock, Jr., JJ.