        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

152
CA 15-00718
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


CATHERINE M. HEARY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DENISE HIBIT AND ERIK M. HIBIT,
DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.)


BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (SARAH P. RERA OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered February 4, 2015. The order, among other
things, granted plaintiff’s motion to set aside the jury verdict on
the issue of past and future pain and suffering.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law and in the exercise of discretion by
vacating the first and second ordering paragraphs and as modified the
order is affirmed without costs, and a new trial on damages is
granted.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained in a motor vehicle accident. In her
bill of particulars, plaintiff alleged that she sustained injuries to
her cervical spine that qualified as a serious injury within the
meaning of Insurance Law § 5102 (d) under the permanent consequential
limitation of use, significant limitation of use and 90/180-day
categories. At defendants’ request, a neurologist performed an
independent medical examination (IME) of plaintiff, and plaintiff
thereafter filed a note of issue. After the note of issue was filed,
plaintiff underwent spinal fusion surgery. Defendants sent a notice
to plaintiff seeking a postsurgical IME by an orthopedist. When
plaintiff refused to submit to the requested postsurgical IME,
defendants moved, inter alia, to compel her to do so. By the order in
appeal No. 2, Supreme Court denied that part of defendants’ motion
seeking to compel plaintiff to submit to the IME but otherwise granted
the motion.

     While appeal No. 2 was pending, a jury trial was conducted. The
jury rendered a verdict in plaintiff’s favor on liability, finding
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                                                         CA 15-00718

that she was not negligent and that she sustained a serious injury
under each category alleged. The jury also awarded damages for, inter
alia, past and future pain and suffering. Plaintiff moved to set
aside the verdict with respect to the awards for past and future pain
and suffering. By the order in appeal No. 1, the court, inter alia,
granted plaintiff’s motion and ordered a new trial on damages for past
and future pain and suffering unless defendants stipulated to
increased awards in those categories.

     In appeal No. 2, we conclude that the court erred in denying that
part of defendants’ motion that sought to compel plaintiff to submit
to a postsurgical IME by an orthopedist. “There is no restriction in
CPLR 3121 limiting the number of examinations to which a party may be
subjected, and a subsequent examination is permissible where the party
seeking the examination demonstrates the necessity for it” (Young v
Kalow, 214 AD2d 559, 559). Here, defendants demonstrated a
substantial change of circumstances, i.e., plaintiff’s spinal fusion
surgery, that necessitated an orthopedic IME (see Buerger v County of
Erie, 101 AD2d 1025, 1025). Although plaintiff had submitted to an
IME by a neurologist, her claimed injuries were both neurological and
orthopedic, and defendants were thus entitled to an orthopedic IME
(see Gitto v Scamoni, 62 AD3d 1232, 1233; Streicker v Adir Rent A Car,
279 AD2d 385, 385). Plaintiff, moreover, failed to show that her
prosecution of the action would be prejudiced by the additional IME by
an orthopedist (see Streicker, 279 AD2d at 385). We therefore reverse
the order in appeal No. 2 insofar as appealed from, and we grant that
part of defendants’ motion seeking to compel plaintiff to submit to an
IME by an orthopedist.

     The error in refusing to compel plaintiff to submit to the
postsurgical IME, however, does not affect the jury’s verdict with
respect to the parties’ respective fault. Nor does the error affect
the jury’s finding that plaintiff sustained a serious injury under the
90/180-day category. “[A] jury’s finding that the plaintiff sustained
an injury within any of the categories set forth in Insurance Law
§ 5102 (d) satisfies the no-fault threshold, thereby eliminating that
issue from the case and permitting the plaintiff to recover any
damages proximately caused by the accident” (Kelley v Balasco, 226
AD2d 880, 880; see Obdulio v Fabian, 33 AD3d 418, 419). Thus,
inasmuch as the jury found that plaintiff sustained a serious injury
under the 90/180-day category, and the postsurgical IME would not bear
on that category, the error in appeal No. 2 does not warrant
disturbing the verdict in appeal No. 1 on liability, i.e., negligence
and serious injury (see generally Ruzycki v Baker, 301 AD2d 48, 52).

     We further conclude, however, that the error in refusing to
compel plaintiff to submit to a postsurgical IME by an orthopedist is
relevant to the verdict on damages. We therefore exercise our
authority under CPLR 4404 (a), which we share with the trial court
(see e.g. Dessasore v New York City Hous. Auth., 70 AD3d 440, 441), to
grant a new trial on damages only in appeal No. 1, and we modify the
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                                            CA 15-00718

order therein accordingly.




Entered:   April 29, 2016          Frances E. Cafarell
                                   Clerk of the Court
