Opinion
983 CA 18–00603
09-28-2018
Susan M. BURNS, Plaintiff–Respondent, v. Jane M. KROENING, Defendant–Appellant.
FITZGERALD & ROLLER, P.C., BUFFALO (DEREK J. ROLLER OF COUNSEL), FOR DEFENDANT–APPELLANT. PAUL WILLIAM BELTZ, P.C., BUFFALO (WILLIAM A. QUINLAN OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
FITZGERALD & ROLLER, P.C., BUFFALO (DEREK J. ROLLER OF COUNSEL), FOR DEFENDANT–APPELLANT.
PAUL WILLIAM BELTZ, P.C., BUFFALO (WILLIAM A. QUINLAN OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting defendant's motion in part and dismissing the complaint, as amplified by the amended bill of particulars dated November 6, 2017, with respect to the significant limitation of use and permanent consequential limitation of use categories of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained in a motor vehicle accident in a parking lot. We reject defendant's contention that Supreme Court abused its discretion in granting plaintiff's cross motion seeking leave to amend the bill of particulars to allege that she sustained a serious injury under the 90/180–day category (see Ellis v. Emerson, 34 A.D.3d 1334, 1336, 825 N.Y.S.2d 608 [4th Dept. 2006] ). Plaintiff's cross motion was made before a note of issue was filed (cf. Stewart v. Dunkleman, 128 A.D.3d 1338, 1339–1340, 8 N.Y.S.3d 515 [4th Dept. 2015], lv denied 26 N.Y.3d 902, 2015 WL 5125616 [2015] ), and it is well settled that leave to amend a bill of particulars shall be freely granted (see Scarangello v. State of New York, 111 A.D.2d 798, 799, 490 N.Y.S.2d 781 [2d Dept. 1985] ; Cardy v. Frey, 86 A.D.2d 968, 969, 448 N.Y.S.2d 291 [4th Dept. 1982] ; see generally CPLR 3025[b] ).
With respect to defendant's motion 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), we note that plaintiff opposed only those parts of the motion concerning the fracture and 90/180–day categories. Plaintiff has therefore abandoned her claims with respect to the significant limitation of use and permanent consequential limitation of use categories of serious injury (see Oberly v. Bangs Ambulance, 96 N.Y.2d 295, 297, 727 N.Y.S.2d 378, 751 N.E.2d 457 [2001] ; Gatti v. Schwab, 140 A.D.3d 1640, 1640, 33 N.Y.S.3d 618 [4th Dept. 2016] ; Feggins v. Fagard, 52 A.D.3d 1221, 1222, 860 N.Y.S.2d 346 [4th Dept. 2008] ). Thus, we modify the order by granting defendant's motion with respect to those categories.
We reject defendant's contention that the court erred in denying her motion with respect to the fracture category of serious injury. Defendant failed to meet her initial burden of establishing that plaintiff's alleged thumb fracture was not related to the accident (see Kolios v. Znack, 237 A.D.2d 333, 333, 655 N.Y.S.2d 443 [2d Dept. 1997] ). In any event, plaintiff raised a triable issue of fact through the affirmation of her treating physician, who opined that the thumb fracture was causally related to the accident (see Haddadnia v. Saville, 29 A.D.3d 1211, 1212, 815 N.Y.S.2d 319 [3d Dept. 2006] ). Defendant also failed to meet her initial burden with respect to the 90/180–day category (see James v. Thomas, 156 A.D.3d 1440, 1441, 67 N.Y.S.3d 735 [4th Dept. 2017] ; see also Hartley v. White, 63 A.D.3d 1689, 1690, 881 N.Y.S.2d 583 [4th Dept. 2009] ). Defendant's brief focuses on plaintiff's proof submitted in support of her cross motion for summary judgment with respect to the issue of serious injury, but the court denied that part of the cross motion and plaintiff did not appeal. Inasmuch as defendant failed to meet her initial burden of demonstrating entitlement to judgment as a matter of law with respect to the 90/180–day category, the burden never shifted to plaintiff to demonstrate the existence of material issues of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).