On June 28, 2023, the Appellate Division, Second Department joined the First Department in holding that a plaintiff requiring surgery for the injuries suffered in an accident is not required to delay surgery and prolong his/her suffering, just so that the defendant who is being sued for those injuries can have their physician perform an "Independent" or "Insurance Medical Exam" (IME). It's been two years since the First Department refused to impose the drastic sanction of a finding of spoliation of evidence, when a plaintiff underwent surgery without notifying the defense and affording them the opportunity to conduct an IME. (See, Gilliam v Uni Holdings, LLC, 201 AD3d 83 (1 st Dept 2021) The Second Department agreed with the First Department's holding that "a spoliation analysis should not be applied to a person's bodily condition...and is antithetical to our belief in personal liberty and control over our own bodies."

The Second Department explained that: "It is not reasonable to require a plaintiff to delay medical treatment, and potentially prolong his or her suffering, solely to allow a defendant to examine the plaintiff's body in a presurgical state." Fadeau v Corona Indus. Corp., 2023 N.Y. Slip Op. 03453