Summary
holding material issue of fact existed as to whether the plaintiff suffered a "serious injury" under § 5102(d)'s "90/180" rule where the plaintiff was unable to return to work for more than 90 days after the accident, precluding summary judgment
Summary of this case from Maxwell v. BeckerOpinion
CA 03-00028
June 13, 2003.
Appeal from an order of Supreme Court, Wyoming County (Dadd, J.), entered March 20, 2002, which denied the motion of defendants Thomas C. Dunn and Elizabeth Dunn seeking summary judgment dismissing the complaint.
TREVETT, LENWEAVER SALZER, P.C., ROCHESTER (CYNTHIA A. CONSTANTINO GLEASON OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
JOSEPH J. TERRANOVA, HAMBURG, FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion of defendants Thomas C. Dunn and Elizabeth Dunn in part and dismissing the claim of serious injury under the significant limitation of use of a body function or system category under Insurance Law 5102(d) against them and as modified the order is affirmed without costs.
Memorandum:
Although Supreme Court properly denied that part of the motion of Thomas C. Dunn and Elizabeth Dunn (defendants) seeking summary judgment dismissing the claim under the 90/180-day category of serious injury, it erred in denying that part of the motion seeking summary judgment dismissing the claim under the significant limitation of use of a body function or system category ( see Insurance Law 5102 [d]). With respect to plaintiff's claim of serious injury under the 90/180-day category, "the complaint as amplified by the bill of particulars" ( Balnys v. Town of New Baltimore, 160 A.D.2d 1136, 1136) alleges a qualifying injury consisting of a "whiplash injury to [plaintiff's] cervical spine and [a] lumbosacral sprain/strain." Defendants' expert did not refute that allegation. Indeed, the only opinion expressed by defendants' expert relevant to the 90/180-day category indicates that the symptoms resulting from the accident may have taken as long as three months to resolve. As proponents of a motion seeking summary judgment, defendants bore the initial burden of "mak[ing] a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). Defendants failed to meet that burden here with respect to the 90/180-day category of serious injury, and thus the court properly denied that part of their motion seeking summary judgment dismissing that claim, "regardless of the sufficiency of the opposing papers" ( id.). Defendants' contention that plaintiff was not sufficiently curtailed from performing her usual activities for the minimum statutorily prescribed period is raised for the first time on appeal and thus is not properly before us ( see Wojtowicz v. Dexter Terrace Elementary Schools [BOCES], 288 A.D.2d 915, 916; Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985). In any event, the medical records submitted by defendants on their motion indicate that plaintiff was unable to return to work for more than 90 days after the accident, and thus that contention lacks merit.
With respect to plaintiff's claim of serious injury under the significant limitation of use category, however, defendants' proof was sufficient to shift the burden to plaintiff to submit "`competent medical evidence based upon objective medical findings and diagnostic tests to support [her] claim'" ( Tankersley v. Szesnat, 235 A.D.2d 1010, 1012, quoting Eisen v. Walter Samuels, 215 A.D.2d 149, 150). Plaintiff failed to meet that burden and thus the court erred in failing to grant that part of defendants' motion seeking summary judgment dismissing that claim ( see Winslow v. Callaghan, 306 A.D.2d 853 [June 13, 2003]). We thus modify the order by granting defendants' motion in part and dismissing the claim of serious injury under the significant limitation of use of a body function or system category under Insurance Law 5102(d) against them.