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