Opinion
02-13-2015
Edward GAWRON, Plaintiff, and Joanne Gawron, Plaintiff–Respondent, v. TOWN OF CHEEKTOWAGA and David J. Grzybek, Defendants–Appellants.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Martha E. Donovan of Counsel), for Defendants–Appellants. Law Office of Michael D. Hollenbeck, Buffalo (Michael D. Hollenbeck of Counsel), for Plaintiff–Respondent.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Martha E. Donovan of Counsel), for Defendants–Appellants.
Law Office of Michael D. Hollenbeck, Buffalo (Michael D. Hollenbeck of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.
Opinion
MEMORANDUM:Plaintiffs commenced this action seeking damages for injuries they sustained when their vehicle was struck by a snowplow owned by defendant Town of Cheektowaga and operated by its employee, defendant David J. Grzybek. Supreme Court properly denied defendants' motion seeking summary judgment dismissing the complaint with respect to Joanne Gawron (plaintiff) on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Defendants failed to make “a prima facie showing that plaintiff's alleged injuries did not satisfy [the] serious injury threshold” under the three categories alleged by plaintiff (Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 ; see Greenidge v. Righton Limo, Inc., 43 A.D.3d 1109, 1109, 841 N.Y.S.2d 791 ), and we therefore do not consider plaintiff's submissions in opposition to the motion (see Greenidge, 43 A.D.3d at 1110, 841 N.Y.S.2d 791 ). With respect to the categories of permanent consequential limitation of use and significant limitation of use, defendants' own submissions raise triable issues of fact whether plaintiff's alleged limitations are “ ‘significant’ or ‘consequential’ (i.e., important ...)” within the meaning of the statute (Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 647 N.E.2d 105 ; see Matte v. Hall, 20 A.D.3d 898, 899, 798 N.Y.S.2d 829 ). Defendants' own submissions also raise triable issues of fact whether plaintiff's injuries were preexisting and unrelated to the accident (cf. Franchini v. Palmieri, 307 A.D.2d 1056, 1056–1057, 763 N.Y.S.2d 381, affd. 1 N.Y.3d 536, 775 N.Y.S.2d 232, 807 N.E.2d 282 ). In addition, defendants failed to meet their burden of establishing that plaintiff did not sustain a serious injury under the third category alleged by plaintiff, i.e., the 90/180–day category (see Greenidge, 43 A.D.3d at 1109–1110, 841 N.Y.S.2d 791 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.