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

1168
CA 13-00343
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


ERICA DANIELS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FRANCES A. RUMSEY, DEFENDANT-APPELLANT,
ET AL., DEFENDANT.
(APPEAL NO. 2.)


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

THE HIGGINS KANE LAW GROUP, P.C., BUFFALO (TERRENCE P. HIGGINS OF
COUNSEL), FOR PLAINTIFF-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 of defendants and, upon
reargument, adhered to that part of a prior decision denying the
motion of defendant Frances A. Rumsey insofar as it sought to compel a
physical examination of plaintiff by an orthopedic specialist.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed in the exercise of discretion without costs and
the motion of defendant Frances A. Rumsey is granted in accordance
with the following Memorandum: Plaintiff commenced this action
seeking damages for injuries she allegedly sustained when the motor
vehicle in which she was a passenger collided with a vehicle owned and
operated by defendant Frances A. Rumsey. The vehicle in which
plaintiff was a passenger was owned and operated at the time of the
accident by defendant BuWayna Daniels (Daniels). The accident
occurred when Rumsey attempted to turn left into the parking lot of a
restaurant on 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 her motion to compel a physical examination of
plaintiff by an orthopedic specialist, but granted 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 an orthopedic specialist, but reinstated
the note of issue. In appeal No. 3, Rumsey, as limited by her brief,
appeals from an order granting Daniels’s motion for summary judgment
dismissing the complaint and cross claims against her.
                                 -2-                          1168
                                                         CA 13-00343

     We note at the outset that we dismiss the appeal from the order
in appeal No. 1 inasmuch as that order was superseded by the order in
appeal No. 2 (see generally Loafin’ Tree Rest. v Pardi [appeal No. 1],
162 AD2d 985, 985). With respect to appeal No. 2, we have repeatedly
recognized that “[a] trial court has broad discretion in supervising
the discovery process, and its determinations will not be disturbed
absent an abuse of that discretion” (Finnegan v Peter, Sr. & Mary L.
Liberatore Family Ltd. Partnership, 90 AD3d 1676, 1677; see Carpenter
v Browning-Ferris Indus., 307 AD2d 713, 715). We have also repeatedly
noted, however, “that, where discretionary determinations concerning
discovery and CPLR article 31 are at issue, [we] ‘[are] vested with
the same power and discretion as [Supreme Court, and thus we] may also
substitute [our] own discretion even in the absence of abuse’ ”
(Radder v CSX Transp., Inc., 68 AD3d 1743, 1745, quoting Brady v
Ottaway Newspapers, 63 NY2d 1031, 1032; see Andon v 302-304 Mott St.
Assoc., 94 NY2d 740, 745; Phoenix Mut. Life Ins. Co. v Conway, 11 NY2d
367, 370). Here, Rumsey contends that the court erred in denying her
motion insofar as it sought an order compelling plaintiff to attend
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 neurologist pursuant to CPLR 3121 (a),
under the circumstances we conclude that the court erred in denying
Rumsey’s motion insofar as it sought a further physical examination of
plaintiff by an orthopedic specialist. The record establishes that
the neurologist examined plaintiff only two weeks before she underwent
spinal surgery, that Rumsey learned of that surgery after the fact,
and that plaintiff served a supplemental bill of particulars advising
of the possibility of surgery approximately two weeks before the
physical examination was performed, and approximately two months after
the original date for which that examination was noticed. Moreover,
we note that the physical examination was adjourned at plaintiff’s
behest. Given those circumstances, we conclude that Rumsey met her
burden of demonstrating the necessity for one further physical
examination of plaintiff, by an orthopedic specialist (see Carrington
v Truck-Rite Dist. Sys. Corp., 103 AD3d 606, 607; Tucker v Bay Shore
Stor. Warehouse, Inc., 69 AD3d 609, 610). We therefore substitute our
discretion for that of the court and grant Rumsey’s motion to that
extent (see Young v Kalow, 214 AD2d 559, 559-560; see also Dominguez v
Manhattan & Bronx Surface Tr. Operating Auth., 168 AD2d 376, 376; see
generally Radder, 68 AD3d at 1745; Gitto v Scamoni, 62 AD3d 1232,
1233).

     With respect to appeal No. 3, we conclude that the court properly
granted Daniels’s motion 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 to turn to the left . . .
into . . . [a] private road[] or driveway shall yield the right of way
to any vehicle approaching from the opposite direction which is within
the intersection or so close as to constitute an immediate hazard.”
To meet her initial 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 lawful and prudent manner
and that there was nothing [Daniels] could have done to avoid the
                                 -3-                          1168
                                                         CA 13-00343

collision” (Ithier v Harnden, 13 AD3d 1204, 1205 [internal quotation
marks omitted]; see Miller v Richardson, 48 AD3d 1298, 1300, lv denied
11 NY3d 710; Pomietlasz v Smith, 31 AD3d 1173, 1174). Daniels met
that burden by submitting evidence that the accident occurred after
Rumsey turned her vehicle left into Daniels’s path of travel in the
southbound curb lane of Delaware Avenue, that Daniels had the right-
of-way, and that Daniels was proceeding at a speed of between 30 and
35 miles per hour at the time of the accident, i.e., no more than five
miles per hour above the posted speed limit. Daniels also established
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 proved unsuccessful. Contrary to Rumsey’s
contention, the fact that Daniels may have been driving at a speed in
excess of five miles per hour over the posted speed limit of 30 miles
per hour is inconsequential inasmuch as there is no indication that
she could have avoided the accident even if she had been traveling at
a speed at or below the posted speed limit (see Galvin v Zacholl, 302
AD2d 965, 966, lv denied 100 NY2d 512; see also Stinehour v Kortright,
157 AD2d 899, 900). 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).




Entered:   November 15, 2013                   Frances E. Cafarell
                                               Clerk of the Court
