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Home / Case Digests / Appellate Division, Fourth Dept. / Fourth Department — Motor Vehicle Accident: Daniels v. Rumsey, et al.

Fourth Department — Motor Vehicle Accident: Daniels v. Rumsey, et al.

Appellate Division, Fourth Department

Motor Vehicle Accident

Physical Accident — Motion to Compel

Daniels v. Rumsey, et al.
CA 13-00343
Appealed from Supreme Court, Erie County

Background: The plaintiff commenced an action after she sustained injuries as the result of a motor vehicle accident. The accident occurred when the defendant driver of the vehicle in which she was a passenger turned left into a parking lot of a restaurant in front of the other driver’s vehicle. The defendant driver appealed from the denial of her motion to compel the plaintiff to be examined by an orthopedic specialist. She also appealed from the denial of her motion for summary judgment dismissing the complaint and cross-claims against her. The plaintiff appealed from the grant of summary judgment to the other driver.

Ruling: The Appellate Division reversed. The record established that a neurologist examined by the plaintiff only two weeks before she underwent spinal surgery and the defendant only learned of the surgery after the fact. Further, the plaintiff revised her bill of particulars advising of the possibility of surgery two months after the original date for which an examination was noticed. Finally, the examination was adjourned at the plaintiff’s behest. With respect to the other motion, the other driver established that she only had fractions of a second to react when the defendant entered her lane.

Norman E.S. Greene of the Bouvier Partnership for the defendant-appellant; Terrence P. Higgins of the Higgins Kane Law Group for the plaintiff-respondent