Opinion
03-25-2016
Mary L. BARRON, Plaintiff–Appellant, v. NORTHTOWN WORLD AUTO, Northtown World Auto Centre, L.L.C., and George H. Balduf, Defendants–Respondents.
William Mattar P.C., Williamsville (Matthew J. Kaiser of Counsel), for Plaintiff–Appellant. Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Joshua P. Rubin of Counsel), For Defendants–Respondents.
William Mattar P.C., Williamsville (Matthew J. Kaiser of Counsel), for Plaintiff–Appellant.
Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Joshua P. Rubin of Counsel), For Defendants–Respondents.
Opinion
MEMORANDUM:
In this action to recover damages for injuries sustained as the result of a rear-end motor vehicle collision, plaintiff appeals from an order granting the motion of defendants for summary judgment dismissing the complaint and denying plaintiff's cross motion for partial summary judgment on the issue of defendant driver's negligence. At the outset, we note that plaintiff contends only that she sustained a permanent consequential limitation of use and a significant limitation of use of her left shoulder, thereby abandoning her other particularized claims of serious injury (see Austin v. Rent A Ctr. E., Inc., 90 A.D.3d 1542, 1543, 935 N.Y.S.2d 767; Yoonessi v. Givens, 39 A.D.3d 1164, 1165, 836 N.Y.S.2d 388; see also Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745). We agree with plaintiff that Supreme Court erred in granting defendants' motion insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff sustained a serious injury within the meaning of those two categories. Even assuming, arguendo, that defendants met their initial burden on the motion with respect to those categories (see Virella v. Allstate Home Care of Buffalo, Inc., 59 A.D.3d 1100, 1101, 872 N.Y.S.2d 611; Sconiers v. Barber, 51 A.D.3d 1403, 1404, 857 N.Y.S.2d 410), we nonetheless conclude that plaintiff raised triable issues of fact concerning the nature, extent and cause of the alleged pain and limitations in her shoulder, to which she underwent surgery within about three months of the accident (see Kellerson v. Asis, 81 A.D.3d 1437, 1437–1438, 916 N.Y.S.2d 716; Parkhill v. Cleary, 305 A.D.2d 1088, 1088–1089, 759 N.Y.S.2d 262).
We further conclude that the court erred in denying plaintiff's cross motion for partial summary judgment on the issue of defendant driver's negligence in operating his vehicle at the time of the accident, which occurred in heavy traffic on the approach to a New York State Thruway toll barrier. It is well established that a “ ‘rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle, and imposes a duty on the operator of the moving vehicle to come forward with an adequate, [nonnegligent] explanation for the accident’ ” (Borowski v. Ptak, 107 A.D.3d 1498, 1498, 968 N.Y.S.2d 268; see Kabir v. County of Monroe, 68 A.D.3d 1628, 1633–1634, 892 N.Y.S.2d 714, affd. 16 N.Y.3d 217, 920 N.Y.S.2d 268, 945 N.E.2d 461). Here, plaintiff met her burden of demonstrating that defendant driver was negligent and that such negligence was a proximate cause of the accident. Defendant driver, in admitting that he drove a vehicle with a missing brake pedal pad, and claiming that his foot slipped onto the accelerator when he attempted to brake, failed to present a nonnegligent explanation and thus failed to raise a triable issue of fact sufficient to defeat the cross motion (see Kabir, 68 A.D.3d at 1633–1634, 892 N.Y.S.2d 714).
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, defendants' motion is denied in part, the complaint, as amplified by the bill of particulars, is reinstated 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 plaintiff's cross motion is granted.