Opinion
714 CA 20-00803
11-12-2021
Eric J. HOLLENBECK, Plaintiff-Respondent, v. Brian R. BARRY, and the Estate of Linda L. Olejniczak, Deceased, Defendants-Appellants.
LAW OFFICES OF JENNIFER S. ADAMS, YONKERS (KEVIN J. GRAFF OF COUNSEL), FOR DEFENDANTS-APPELLANTS. LAW OFFICE OF MICHAEL D. HOLLENBECK, BUFFALO (MICHAEL D. HOLLENBECK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
LAW OFFICES OF JENNIFER S. ADAMS, YONKERS (KEVIN J. GRAFF OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
LAW OFFICE OF MICHAEL D. HOLLENBECK, BUFFALO (MICHAEL D. HOLLENBECK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking to recover damages for injuries he allegedly sustained after the vehicle he was driving was struck by a vehicle driven by defendant Brian R. Barry. Defendants appeal from an order that, inter alia, denied their motion insofar as it sought summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) under the permanent consequential limitation of use and significant limitation of use categories and granted that part of plaintiff's cross motion seeking summary judgment on the issue of Barry's negligence.
Contrary to defendants’ contention, we conclude that Supreme Court properly denied their motion with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury. Even assuming, arguendo, that defendants met their initial burden on the motion by submitting a report from a physician who conducted an independent medical examination of plaintiff, we conclude that plaintiff raised a triable issue of fact with respect to both of those categories by submitting, among other things, the conflicting expert affidavit of his treating physician (see Cline v. Code , 175 A.D.3d 905, 908, 107 N.Y.S.3d 539 [4th Dept. 2019] ; DaCosta v. Gibbs , 139 A.D.3d 487, 487-488, 33 N.Y.S.3d 160 [1st Dept. 2016] ; Cook v. Peterson , 137 A.D.3d 1594, 1596, 1598, 28 N.Y.S.3d 501 [4th Dept. 2016] ). We reject defendants’ further contention that they were entitled to summary judgment based on an alleged one-year gap in plaintiff's treatment. Summary judgment may be appropriate " ‘[e]ven where there is objective medical proof [of a serious injury], when additional contributory factors interrupt the chain of causation between the accident and the claimed injury—such as a gap in treatment, an intervening medical problem or a preexisting condition’ " ( McCarthy v. Bellamy , 39 A.D.3d 1166, 1166, 834 N.Y.S.2d 800 [4th Dept. 2007], quoting Pommells v. Perez , 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ). In this case, however, "the record fails to establish that plaintiff in fact ceased all therapeutic treatment" during the purported gap ( Cook , 137 A.D.3d at 1597, 28 N.Y.S.3d 501 ).
Defendants also contend that, inasmuch as there is a triable issue of fact whether plaintiff contributed to the accident, the court erred in granting that part of plaintiff's cross motion with respect to Barry's negligence. We reject that contention. "[A] plaintiff's comparative negligence is no longer a complete defense and its absence need not be pleaded and proved by the plaintiff, but rather is only relevant to the mitigation of plaintiff's damages" ( Rodriguez v. City of New York , 31 N.Y.3d 312, 321, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ). Thus, "to obtain partial summary judgment on [a] defendant's liability[, a plaintiff] does not have to demonstrate the absence of his [or her] own comparative fault" ( id. at 323, 76 N.Y.S.3d 898, 101 N.E.3d 366 ; see Lowes v. Anas , 195 A.D.3d 1579, 1582, 150 N.Y.S.3d 462 [4th Dept. 2021] ).
Finally, we note that, inasmuch as plaintiff did not cross-appeal from the court's order, his contention that the court erred in granting defendants’ motion with respect to the 90/180-day category of serious injury is not properly before us (see Depczynski v. Schuster , 196 A.D.3d 1105, 1107, 152 N.Y.S.3d 194 [4th Dept. 2021] ; Salovin v. Orange Regional Med. Ctr. , 174 A.D.3d 1191, 1194, 105 N.Y.S.3d 184 [3d Dept. 2019] ).