Opinion
2013-04-26
Walter P. MALESA, Plaintiff-respondent, v. Kristi M. BURG, Wheels Lt., Takeda America Holdings, Inc., also known as Takeda America, Inc., and Takeda Pharmaceuticals America, Inc., also known as Takeda Pharmaceuticals America Sales Co., Defendants–Appellants.
Law Offices of Laurie G. Ogden, Buffalo (Pamela S. Schaller Of Counsel), For Defendants–Appellants. Michael G. Cooper, Hamburg, for Plaintiff–Respondent.
Law Offices of Laurie G. Ogden, Buffalo (Pamela S. Schaller Of Counsel), For Defendants–Appellants. Michael G. Cooper, Hamburg, for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiff commenced this personal injury action seeking damages for injuries that he sustained as a result of an automobile accident. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and Supreme Court denied their motion. In our view, defendants established their entitlement to summary judgment dismissing the complaint, as amplified by the bill of particulars, with respect to two of the three categories of serious injury allegedly sustained by plaintiff. We therefore modify the order accordingly. We conclude that defendants established that plaintiff did not sustain a permanent consequential limitation of use, and plaintiff failed to raise an issue of fact whether the injury was both permanent and consequential, i.e., important or significant ( see Kordana v. Pomellito, 121 A.D.2d 783, 784, 503 N.Y.S.2d 198,appeal dismissed68 N.Y.2d 848, 508 N.Y.S.2d 425, 501 N.E.2d 33). We further conclude that defendants established as a matter of law that plaintiff did not sustain a significant limitation of use and that plaintiff failed to raise an issue of fact with respect thereto ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Indeed, the evidence submitted by plaintiff in opposition to the motion does not provide “ ‘either a quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones' ” ( Secore v. Allen, 27 A.D.3d 825, 827, 811 N.Y.S.2d 170;see Scott v. Aponte, 49 A.D.3d 1131, 1134, 854 N.Y.S.2d 243). Even assuming, arguendo, that the injuries sustained by plaintiff were caused by the accident, we conclude that plaintiff's proof “fell short of demonstrating that [the injuries] constituted a significant limitation” ( Scott, 49 A.D.3d at 1134, 854 N.Y.S.2d 243). We agree with the court, however, that there is an issue of fact whether plaintiff sustained a serious injury within the meaning of the 90/ 180–day category ( see Rienzo v. La Greco, 11 A.D.3d 1038, 784 N.Y.S.2d 743;DiNunzio v. County of Suffolk, 256 A.D.2d 498, 498, 682 N.Y.S.2d 406,lv. denied93 N.Y.2d 812, 695 N.Y.S.2d 541, 717 N.E.2d 700).
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 significant limitation of use categories of serious injury within the meaning of Insurance Law § 5102(d) and as modified the order is affirmed without costs.