Fludd v Pena, 2014 NY Slip Op 07747 (1st Dept. 2014)
This 5102(d) case is interesting because it stands for the proposition that the failure to make complaints of pain at the IME of the affected body parts will negate the requirement to examine that body part. I am going to say that is the case even when there is record evidence of pain at that body part.
“Defendants were not required to present medical evidence with respect to plaintiff’s alleged injury to her left shoulder, since plaintiff failed to recall at her deposition which shoulder was injured (see Thomas v City of New York, 99 AD3d 580, 582 [1st Dept 2012], lv denied 22 NY3d 857 [2013]). Moreover, plaintiff made no complaints about any shoulder injury when she was examined by defendants’ expert.”
Interesting…
