Opinion
2013-10-4
Anthony P. FANTI and Deborah Fanti, Plaintiffs–Respondents, v. Ryan L. McLAREN and Stacy McLaren, Defendants–Appellants.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Michael J. Chmiel of Counsel), for Defendants–Appellants. Freid And Klawon, Williamsville (Wayne I. Freid of Counsel), for Plaintiffs–Respondents.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Michael J. Chmiel of Counsel), for Defendants–Appellants.Freid And Klawon, Williamsville (Wayne I. Freid of Counsel), for Plaintiffs–Respondents.
PRESENT: SMITH, J.P., SCONIERS, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
In this action commenced by plaintiffs to recover damages for injuries allegedly sustained by Anthony P. Fanti (plaintiff) in an automobile accident, defendants appeal from an order denying their motion seeking 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 conclude that Supreme Court properly denied the motion with respect to the permanent consequential limitation of use, significant limitation of use, and 90/180–day categories of serious injury. “It is well settled that the aggravation of an asymptomatic condition can constitute a serious injury” ( Verkey v. Hebard, 99 A.D.3d 1205, 1206, 952 N.Y.S.2d 356). Here, defendants' own submissions, including plaintiff's deposition testimony, raise triable issues of fact whether, under those three categories, “the accident aggravated and exacerbated plaintiff's pre-existing, asymptomatic degenerative disease in his [lumbosacral] spine” ( Austin v. Rent A Ctr. E., Inc., 90 A.D.3d 1542, 1543, 935 N.Y.S.2d 767;see Hint v. Vaughn, 100 A.D.3d 1519, 1520, 954 N.Y.S.2d 379). Finally, plaintiffs have abandoned the permanent loss of use category of serious injury alleged in their bill of particulars ( see Austin, 90 A.D.3d at 1543, 935 N.Y.S.2d 767;see also Yoonessi v. Givens, 39 A.D.3d 1164, 1165, 836 N.Y.S.2d 388), and we therefore modify the order accordingly.
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 loss of use category of serious injury within the meaning of Insurance Law § 5102(d) and as modified the order is affirmed without costs.