| Daniels v Rumsey |
| 2013 NY Slip Op 07615 [111 AD3d 1408] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| Erica Daniels, Respondent, v Frances A. Rumsey,Appellant, et al., Defendant. (Appeal No. 2.) |
—[*1] The Higgins Kane Law Group, P.C., Buffalo (Terrence P. Higgins of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.),entered July 9, 2012. The order, inter alia, granted plaintiff leave to reargue the motion ofdefendants and, upon reargument, adhered to that part of a prior decision denying themotion of defendant Frances A. Rumsey insofar as it sought to compel a physicalexamination of plaintiff by an orthopedic specialist.
It is hereby ordered that the order insofar as appealed from is unanimously reversedin the exercise of discretion without costs and the motion of defendant Frances A.Rumsey is granted in accordance with the following memorandum: Plaintiff commencedthis action seeking damages for injuries she allegedly sustained when the motor vehiclein which she was a passenger collided with a vehicle owned and operated by defendantFrances A. Rumsey. The vehicle in which plaintiff was a passenger was owned andoperated at the time of the accident by defendant BuWayna Daniels (Daniels). Theaccident occurred when Rumsey attempted to turn left into the parking lot of a restauranton Delaware Avenue in Buffalo in front of Daniels's oncoming vehicle.
In appeal No. 1, Rumsey appeals from an order that, inter alia, denied that part of hermotion to compel a physical examination of plaintiff by an orthopedic specialist, butgranted that part of her motion seeking to strike the note of issue. In appeal No. 2,Rumsey appeals from an order in which Supreme Court granted leave to reargue and,inter alia, adhered to its ruling with respect to the physical examination of plaintiff by anorthopedic specialist, but reinstated the note of issue. In appeal No. 3, Rumsey, as limitedby her brief, appeals from an order granting Daniels's motion for summary judgmentdismissing the complaint and cross claims against her.
We note at the outset that we dismiss the appeal from the order in appeal No. 1inasmuch as that order was superseded by the order in appeal No. 2 (see generallyLoafin' Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985, 985 [1990]). With respectto appeal No. 2, we have repeatedly recognized that "[a] trial court has broad discretionin supervising the discovery process, and its determinations will not be disturbed absentan abuse of that discretion" (Finnegan v Peter, Sr. & [*2]Mary L.Liberatore Family Ltd. Partnership, 90 AD3d 1676, 1677 [2011]; seeCarpenter v Browning-Ferris Indus., 307 AD2d 713, 715 [2003]). We have alsorepeatedly noted, however, "that, where discretionary determinations concerningdiscovery and CPLR article 31 are at issue, [we] '[are] vested with the same power anddiscretion as [Supreme Court, and thus we] may also substitute [our] own discretioneven in the absence of abuse' " (Radder v CSX Transp., Inc., 68 AD3d 1743, 1745 [2009],quoting Brady v Ottaway Newspapers, 63 NY2d 1031, 1032 [1984]; seeAndon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]; Phoenix Mut. LifeIns. Co. v Conway, 11 NY2d 367, 370 [1962]). Here, Rumsey contends that thecourt erred in denying her motion insofar as it sought an order compelling plaintiff toattend further physical examinations as warranted by her allegations. In particular,Rumsey sought to have plaintiff physically examined by an orthopedic specialist.Although plaintiff previously had submitted to a physical examination by a neurologistpursuant to CPLR 3121 (a), under the circumstances we conclude that the court erred indenying Rumsey's motion insofar as it sought a further physical examination of plaintiffby an orthopedic specialist. The record establishes that the neurologist examined plaintiffonly two weeks before she underwent spinal surgery, that Rumsey learned of that surgeryafter the fact, and that plaintiff served a supplemental bill of particulars advising of thepossibility of surgery approximately two weeks before the physical examination wasperformed, and approximately two months after the original date for which thatexamination was noticed. Moreover, we note that the physical examination wasadjourned at plaintiff's behest. Given those circumstances, we conclude that Rumsey mether burden of demonstrating the necessity for one further physical examination ofplaintiff, by an orthopedic specialist (see Carrington v Truck-Rite Dist. Sys. Corp., 103 AD3d606, 607 [2013]; Tucker vBay Shore Stor. Warehouse, Inc., 69 AD3d 609, 610 [2010]). We thereforesubstitute our discretion for that of the court and grant Rumsey's motion to that extent(see Young v Kalow, 214 AD2d 559, 559-560 [1995]; see also Dominguez vManhattan & Bronx Surface Tr. Operating Auth., 168 AD2d 376, 376 [1990];see generally Radder, 68 AD3d at 1745; Gitto v Scamoni, 62 AD3d 1232, 1233 [2009]).
With respect to appeal No. 3, we conclude that the court properly granted Daniels'smotion for summary judgment dismissing the complaint and cross claims against her.Pursuant to Vehicle and Traffic Law § 1141, "[t]he driver of a vehicle intending toturn to the left . . . into . . . [a] private road[ ] or driveway shallyield the right of way to any vehicle approaching from the opposite direction which iswithin the intersection or so close as to constitute an immediate hazard." To meet herinitial burden on her motion, Daniels was required "to establish both that [Rumsey's]vehicle suddenly entered the lane where [Daniels] was operating [her vehicle] in a lawfuland prudent manner and that there was nothing [Daniels] could have done to avoid thecollision" (Ithier v Harnden,13 AD3d 1204, 1205 [2004] [internal quotation marks omitted]; see Miller v Richardson, 48AD3d 1298, 1300 [2008], lv denied 11 NY3d 710 [2008]; Pomietlasz v Smith, 31 AD3d1173, 1174 [2006]). Daniels met that burden by submitting evidence that theaccident occurred after Rumsey turned her vehicle left into Daniels's path of travel in thesouthbound curb lane of Delaware Avenue, that Daniels had the right-of-way, and thatDaniels was proceeding at a speed of between 30 and 35 miles per hour at the time of theaccident, i.e., no more than five miles per hour above the posted speed limit. Daniels alsoestablished that she did not see Rumsey's vehicle until its grill was in her lane of travel,and that she had only "[f]ractions of a second" to take evasive measures, which provedunsuccessful. Contrary to Rumsey's contention, the fact that Daniels may have beendriving at a speed in excess of five miles per hour over the posted speed limit of 30 milesper hour is inconsequential inasmuch as there is no indication that she could haveavoided the accident even if she had been traveling at a speed at or below the postedspeed limit (see Galvin v Zacholl, 302 AD2d 965, 966 [2003], lv denied100 NY2d 512 [2003]; see also Stinehour v Kortright, 157 AD2d 899, 900[1990]). In opposition to Daniels's motion, Rumsey failed to raise a triable issue of fact(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Present—Scudder, P.J., Fahey, Peradotto, Lindley and Valentino, JJ.