BARRES, LAURA v. RIKER, DAVID C. , 924 N.Y.S.2d 717 ( 2011 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    784
    CA 11-00280
    PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.
    LAURA BARRES, PLAINTIFF-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    DAVID C. RIKER, DEFENDANT-APPELLANT.
    BURKE, SCOLAMIERO, MORTATI & HURD, LLP, ALBANY (JEFFREY E. HURD OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    DAVID M. GIGLIO AND ASSOCIATES LLC, UTICA (ALYSSA O’NEIL OF COUNSEL),
    FOR PLAINTIFF-RESPONDENT.
    Appeal from an order of the Supreme Court, Oneida County (Anthony
    F. Shaheen, J.), entered October 18, 2010 in a personal injury action.
    The order, insofar as appealed from, denied in part the motion of
    defendant for summary judgment.
    It is hereby ORDERED that the order so appealed from is
    unanimously modified on the law by granting that part of the motion
    for summary judgment dismissing the complaint insofar as the complaint
    alleges that plaintiff sustained a serious injury under the 90/180-day
    category of serious injury within the meaning of Insurance Law § 5102
    (d) and dismissing the complaint to that additional extent and as
    modified the order is affirmed without costs.
    Memorandum: Plaintiff commenced this action seeking damages for
    injuries she allegedly sustained while she was a passenger in a
    vehicle that was struck by a vehicle driven by defendant. It is
    undisputed that, at the time of the accident, plaintiff was recovering
    from surgery to her left shoulder, which had been performed
    approximately one month before the accident. Defendant moved for
    summary judgment dismissing the complaint on the ground that plaintiff
    did not sustain a serious injury under any of the categories of
    Insurance Law § 5102 (d) set forth in the complaint, and Supreme Court
    granted only that part of the motion with respect to the significant
    disfigurement category of serious injury. We note at the outset that
    the only injury addressed by the parties in their motion papers before
    Supreme Court and on appeal is the alleged injury to plaintiff’s left
    shoulder, despite the fact that the complaint also alleges that
    plaintiff’s hips, legs and cervical spine also were affected. We thus
    address on appeal only the alleged injury to plaintiff’s left shoulder
    (see generally Ciesinski v Town of Aurora, 202 AD2d 984).
    With respect to the permanent consequential limitation of use and
    -2-                           784
    CA 11-00280
    significant limitation of use categories of serious injury allegedly
    sustained by plaintiff, we conclude that the court properly denied
    those parts of defendant’s motion. Whether a limitation of use or
    function is consequential or significant, that is, important, “relates
    to medical significance and involves a comparative determination of
    the degree or qualitative nature of an injury based on the normal
    function, purpose and use of the body part” (Dufel v Green, 84 NY2d
    795, 798). Those categories require limitations that are more than
    “ ‘minor, mild or slight’ ” (Toure v Avis Rent A Car Sys., 98 NY2d
    345, 353, quoting Licari v Elliott, 57 NY2d 230, 236), and the
    permanency of an injury alone is not sufficient to render it a
    permanent consequential limitation of use (see Paolini v Sienkiewicz,
    262 AD2d 1020). Here, there are issues of fact on the record before
    us with respect to those two categories of serious injury relating to
    plaintiff’s left shoulder. We note in particular that plaintiff
    testified at her deposition that her left shoulder is dislocated twice
    a week and that the dislocations are painful, and her treating
    physician stated in an affidavit that the condition was permanent and
    that the injury significantly limited her activity level. We reject
    defendant’s conclusory contention that a person experiencing two
    shoulder dislocations a week suffers only a minor, mild, or slight
    inconvenience.
    We agree with defendant, however, that the court erred in denying
    that part of his motion with respect to the 90/180-day category of
    serious injury, and we therefore modify the order accordingly.
    Plaintiff testified at her deposition that she missed only a few days
    of school and that her injuries did not affect her school work, and we
    note in addition that plaintiff’s first reported shoulder dislocation
    after the accident occurred more than 180 days after the accident at
    issue on appeal (see generally Chmiel v Figueroa, 53 AD3d 1092, 1093).
    Entered:   June 10, 2011                        Patricia L. Morgan
    -3-                  784
    CA 11-00280
    Clerk of the Court
    

Document Info

Docket Number: CA 11-00280

Citation Numbers: 85 A.D.3d 1628, 924 N.Y.S.2d 717

Filed Date: 6/10/2011

Precedential Status: Precedential

Modified Date: 1/12/2023