Opinion
1289 CA 17–00868
02-09-2018
Pamela M. KRACKER and Steven M. Kracker, Plaintiffs–Respondents, v. Liam P. O'CONNOR, Defendant–Appellant.
HAGELIN SPENCER LLC, BUFFALO (MATTHEW D. PFALZER OF COUNSEL), FOR DEFENDANT–APPELLANT. ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (KENNETH A. SZYSZKOWSKI OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
HAGELIN SPENCER LLC, BUFFALO (MATTHEW D. PFALZER OF COUNSEL), FOR DEFENDANT–APPELLANT.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (KENNETH A. SZYSZKOWSKI OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Plaintiffs commenced this action seeking damages for injuries that Pamela M. Kracker (plaintiff) allegedly sustained as a result of a motor vehicle accident wherein plaintiff's vehicle was stopped at an intersection and was struck from behind by a vehicle owned and operated by defendant. Defendant appeals from an order denying his motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the three categories alleged by plaintiffs, i.e., the permanent consequential limitation of use, significant limitation of use, and 90/180–day categories (see Insurance Law § 5102[d] ).
We conclude that defendant met his initial burden on the motion by submitting evidence establishing as a matter of law that plaintiff did not sustain a serious injury under the permanent consequential limitation of use and 90/180–day categories (see Hoffman v. Stechenfinger, 4 A.D.3d 778, 779, 772 N.Y.S.2d 432 [4th Dept. 2004] ; Cook v. Franz, 309 A.D.2d 1234, 1234–1235, 765 N.Y.S.2d 537 [4th Dept. 2003] ; Winslow v. Callaghan, 306 A.D.2d 853, 854, 761 N.Y.S.2d 891 [4th Dept. 2003] ). Defendant submitted the affidavit of a physician who, after examining plaintiff and reviewing plaintiff's imaging studies, medical records and medical history, opined that plaintiff sustained a "sprain and strain" and "soft tissue injuries," which are "not serious and permanent injuries." Plaintiff testified at her deposition that she missed no work as a result of the accident, and her medical records establish that she was medically cleared to work "without restrictions" less than two weeks after the accident. In opposition, plaintiffs failed to raise an issue of fact with respect to the permanent consequential limitation of use and 90/180–day categories (see Griffo v. Colby, 118 A.D.3d 1421, 1422, 988 N.Y.S.2d 763 [4th Dept. 2014] ; Yoonessi v. Givens, 39 A.D.3d 1164, 1166, 836 N.Y.S.2d 388 [4th Dept. 2007] ), and we therefore modify the order accordingly.
We conclude, however, that, although defendant also met his initial burden on the motion with respect to the significant limitation of use category of Insurance Law § 5102(d), plaintiffs raised an issue of fact by submitting the affirmation of their medical expert (see LoGrasso v. City of Tonawanda, 87 A.D.3d 1390, 1391, 930 N.Y.S.2d 129 [4th Dept. 2011] ). Specifically, after reviewing plaintiff's medical records and imaging studies, plaintiffs' expert opined that plaintiff sustained a superior labral anterior and posterior tear to her right shoulder that required surgery and was causally related to the accident.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the complaint, as amplified by the bill of particulars, with respect to the permanent consequential limitation of use and 90/180–day categories of serious injury within the meaning of Insurance Law § 5102(d), and as modified the order is affirmed without costs.