Opinion
532 CA 20-00974
08-26-2021
Robert JEFFERY, Plaintiff-Respondent, v. QUEEN CITY FOODS, LLC, and Maria Farinacci, Defendants-Appellants.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., BUFFALO (ALAN J. BEDENKO OF COUNSEL), FOR DEFENDANTS-APPELLANTS. DOLCE FIRM, BUFFALO (JOHN B. LICATA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., BUFFALO (ALAN J. BEDENKO OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
DOLCE FIRM, BUFFALO (JOHN B. LICATA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, TROUTMAN, BANNISTER, 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 damages for injuries that he sustained when the vehicle he was operating was rear-ended by a vehicle operated by defendant Maria Farinacci, an employee of defendant Queen City Foods, LLC. Plaintiff alleged, inter alia, that he sustained a serious injury to his shoulder under the permanent consequential limitation of use and significant limitation of use categories set forth in Insurance Law § 5102 (d). Plaintiff thereafter moved for partial summary judgment on the issues of negligence, proximate cause, and serious injury, and defendants cross-moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury. Defendants appeal from an order that granted plaintiff's motion and denied defendants’ cross motion. We affirm.
Initially, we note that, inasmuch as defendants do not challenge that part of the order granting plaintiff's motion with respect to the issue of negligence, they have abandoned any contention with respect thereto (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
We further note that, even though Supreme Court granted plaintiff's motion with respect to the issue of serious injury, it failed to specify under which category of serious injury plaintiff is entitled to recover. This case involved a competing summary judgment motion and cross motion, and the court chose not to write. This is an unacceptable practice (see generally Kopp v. Rhino Room, Inc. , 192 A.D.3d 1690, 1692, 145 N.Y.S.3d 739 [4th Dept. 2021] ; Cangemi v. Yeager , 185 A.D.3d 1397, 1398, 128 N.Y.S.3d 708 [4th Dept. 2020] ; Doucette v. Cuviello , 159 A.D.3d 1528, 1528, 73 N.Y.S.3d 334 [4th Dept. 2018] ). To maximize effective appellate review, we must remind our colleagues in the trial courts to provide their reasoning instead of simply issuing orders.
With respect to the merits, we nevertheless conclude that, contrary to defendants’ contention, the court properly denied the cross motion and granted the motion with respect to the issues of serious injury and proximate cause. Defendants do not contest that plaintiff established as a matter of law that he sustained a serious injury to his shoulder under the categories of permanent consequential limitation of use and significant limitation of use. Instead, defendants contend only that the alleged shoulder injury was not caused by the accident. To support that argument, defendants rely exclusively on the expert opinion of a biomechanical expert. It is well settled, however, that biomechanical experts are not qualified to render opinions regarding injury causation (see Gates v. Longden , 120 A.D.3d 980, 981, 991 N.Y.S.2d 229 [4th Dept. 2014] ). Defendants’ reliance on Cardin v. Christie, 283 A.D.2d 978, 723 N.Y.S.2d 912 (4th Dept. 2001) is misplaced because the biomechanical expert in that case was also a medical doctor. Putting aside the opinion of plaintiff's biomechanical expert, as we must, there is no conflict between the remaining physicians that the accident caused the shoulder injury. "Inasmuch as plaintiff established a serious injury as a matter of law, [ ]he ‘is entitled to recover damages for all injuries causally related to the accident, even those that do not meet the serious injury threshold’ " ( Maurer v. Colton [appeal No. 3], 180 A.D.3d 1371, 1374, 119 N.Y.S.3d 644 [4th Dept. 2020] ).
In light of the foregoing, defendants’ remaining contentions are academic (see Swed v. Pena , 65 A.D.3d 1033, 1034, 884 N.Y.S.2d 868 [2d Dept. 2009] ).