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BAZAKOS v. LEWIS

56 A.D.3d 15 (2008)

864 N.Y.S.2d 505

LEWIS J. BAZAKOS, Appellant, v. PHILIP LEWIS, Respondent, et al., Defendant.

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 23, 2008.

Attorney(s) appearing for the Case

Ralph A. Hummel, Woodbury, for appellant.

Kopff, Nardelli & Dopf LLP, New York City (Martin B. Adams of counsel), for respondent.

PRUDENTI, P.J., and SKELOS, J., concur with CARNI, J.; COVELLO and SANTUCCI, JJ., dissent in a separate opinion by COVELLO, J.

OPINION OF THE COURT

CARNI, J.

The issue presented for our consideration is as follows: When a physician conducts a medical examination in the context of a personal injury action on behalf of an alleged tortfeasor or his or her insurer and, in the course of doing so, affirmatively injures the examinee, should the examinee's cause of action against the examining physician to recover damages for that injury be characterized as one to recover damages...

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