Second IME Requests: When New York Courts Refuse to Compel Another Exam

Key Takeaways

• CPLR 3121 places no numerical cap on physical examinations, but the party demanding a further exam must demonstrate the necessity for it.
• In Kolodziejski v Jaskolka, the second IME was properly refused because the first examiner reached a definitive conclusion and never said the plaintiff’s alleged refusal to perform certain tests affected her analysis.
• Dissatisfaction with the first examiner’s findings is not “necessity.”
• Litigation IMEs under CPLR 3121 are a different animal from no-fault IMEs under the regulations, where attendance is a condition precedent to coverage.

Understanding the Limits of Multiple Independent Medical Examinations

Independent Medical Examinations (IMEs) are a standard tool in New York no-fault insurance disputes, allowing insurance companies to have their own medical experts evaluate injured parties. However, insurance carriers cannot simply demand unlimited examinations. As demonstrated in a recent appellate decision, there are important legal boundaries governing when multiple IMEs may be required.

The question of whether a second IME can be compelled often arises when insurance companies are dissatisfied with initial examination results or when they claim additional testing is needed. While medical necessity requirements apply to many aspects of no-fault coverage, the standards for ordering subsequent examinations focus on whether the party requesting the additional IME can demonstrate its necessity.

The Decision

Jason Tenenbaum’s Analysis:

Kolodziejski v Jaskolka, 2017 NY Slip Op 07851

“While there is no restriction in CPLR 3121 limiting the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it” (Rinaldi v Evenflo Co., Inc., 62 AD3d 856, 856 ). Here, the examining physician was able to reach a definitive conclusion as a result of the initial independent medical examination, and she never indicated that her analysis and/or conclusion were affected by plaintiff’s alleged refusal to perform certain tests. The court therefore properly declined to compel plaintiff to undergo a second independent medical examination “

The Legal Framework: CPLR 3121 and the Necessity Showing

CPLR 3121 entitles a defendant to a physical examination of a plaintiff whose physical condition is in controversy — which is to say, virtually every personal injury plaintiff. The statute sets no ceiling on the number of examinations, but the case law supplies the governing principle: the first exam comes as of right; every exam after that must be justified by a demonstrated necessity.

What counts as necessity? The cases point to concrete developments: the plaintiff alleges new injuries or undergoes surgery after the first exam, a new medical specialty becomes relevant, or the original examination was genuinely incomplete in a way the examiner identified. What does not count is the carrier’s or defendant’s unhappiness with the first report. Kolodziejski shows the analytical test in operation — the defense pointed to the plaintiff’s alleged refusal to perform certain tests, but the examining physician herself reached a definitive conclusion and never claimed the refusal impaired her analysis. With the examiner satisfied, there was no necessity for round two.

Timing compounds the burden. Once a note of issue is filed, court rules require “unusual or unanticipated circumstances” to reopen discovery, so a late-breaking demand for a further exam faces two hurdles instead of one.

Litigation IMEs Versus No-Fault IMEs

A point of frequent confusion deserves untangling. The IME in Kolodziejski is a litigation exam under CPLR 3121 — a discovery device in a lawsuit, enforced by motion. New York drivers and medical providers more often encounter the no-fault IME under 11 NYCRR 65, which the regulations frame as a condition precedent to coverage: an eligible injured person must appear for properly scheduled examinations, and a failure to appear can support a denial of the claim. The firm’s IME no-show resource collects that body of law.

The practical difference is leverage. In litigation, the burden sits on the party demanding the additional exam. In no-fault, the scheduling letters, mailing proof, and the claimant’s attendance record dominate the fight. Conflating the two regimes leads to bad advice in both directions.

Why This Matters

For injured plaintiffs, Kolodziejski is protection against examination fatigue — a defendant cannot send you to doctor after doctor hoping for a better report. For defendants and carriers, the case is a drafting lesson: if an examiner believes incomplete testing compromised the evaluation, the report must say so explicitly, because the examiner’s silence will be read as satisfaction with the data.

For claims professionals, the decision underscores that exam strategy has to be front-loaded. Pick the right specialty the first time; a do-over requires proof of necessity that dissatisfaction alone will never supply. The 2026 auto tort reform — which eliminated the 90/180-day serious-injury category and added a greater-than-50% fault bar for Article 51 cases commenced after the effective date — only raises the stakes of getting the medical-proof record right the first time; see the firm’s analysis of the 2026 reform.

Practice Pointers

• Plaintiffs: oppose second-exam demands by quoting the first report. A definitive conclusion, uncaveated, is usually dispositive under Rinaldi and Kolodziejski.
• Defendants: build the necessity record. New injuries, post-exam surgery, or an examiner’s express statement that testing was incomplete are the showings that work.
• Examiners’ reports are strategy documents. If tests were refused and it mattered, the report must connect the refusal to the conclusions.
• Move before the note of issue. Post-note demands stack the “unusual or unanticipated circumstances” standard on top of the necessity showing.

Frequently Asked Questions

Can an insurance company request a second IME in New York?

It can ask, but in litigation it cannot compel one without demonstrating necessity. Under CPLR 3121 and Kolodziejski v Jaskolka, when the first examiner reached a definitive conclusion, courts will deny a motion for a further examination absent a concrete showing — such as new injuries or an examination the examiner identified as incomplete.

Do I have to attend a second IME?

In a lawsuit, only if you agree or a court orders it after the defendant proves necessity. In the no-fault claims context the calculus differs: the regulations make appearance at properly scheduled IMEs a condition of coverage, so skipping a duly scheduled no-fault exam risks denial of benefits. Know which regime your exam falls under before deciding.

How many IMEs are allowed in a New York personal injury case?

There is no fixed number. CPLR 3121 contains no limit, but each examination beyond the first requires the demanding party to demonstrate its necessity, and demands made after the note of issue face the additional “unusual or unanticipated circumstances” hurdle.

Related Resources

• IME no-shows in New York no-fault insurance cases (Legal Encyclopedia hub)
• Browse the firm’s Legal Encyclopedia for the full IME and medical-proof library
• Long Island personal injury practice
• Medical necessity and peer review requirements in NY no-fault cases
• New York No-Fault Insurance Law