Opinion
516 CA 19-01583
10-02-2020
Erik D. SWANSON, Plaintiff-Appellant, v. David DOMINESEY, Defendant-Respondent.
JOSEPH (JED) E. DIETRICH, III, ESQ., WILLIAMSVILLE, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFF-APPELLANT. SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (ANTHONY R. BRIGHTON OF COUNSEL), FOR DEFENDANT-RESPONDENT.
JOSEPH (JED) E. DIETRICH, III, ESQ., WILLIAMSVILLE, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (ANTHONY R. BRIGHTON OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint 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 with respect to the claim for economic loss in excess of basic economic loss, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries allegedly sustained as a result of a motor vehicle accident. Plaintiff asserted that, as a result of the collision, he suffered a serious injury under the significant limitation of use, permanent consequential limitation of use, and 90/180-day categories within the meaning of Insurance Law § 5102 (d). Defendant thereafter moved for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury that was causally related to the accident and did not sustain economic loss in excess of basic economic loss (see § 5102 [a] ). Plaintiff appeals from an order granting the motion.
Contrary to plaintiff's contention, Supreme Court properly granted defendant's motion with respect to the 90/180-day category. Defendant submitted "competent evidence establishing that plaintiff's activities were not curtailed to a great extent and that [he] therefore did not sustain a serious injury under the 90/180[-day] category of serious injury," and plaintiff failed to raise a triable issue of fact with respect to that category ( Wilson v. Colosimo , 101 A.D.3d 1765, 1767, 959 N.Y.S.2d 301 [4th Dept. 2012] [internal quotation marks omitted] ).
We agree with plaintiff, however, that the court erred in granting the motion with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury, and we therefore modify the order accordingly. Defendant failed to meet his initial burden of establishing that plaintiff did not sustain a serious injury under those categories that was causally related to the accident inasmuch as his own submissions raised triable issues of fact (see Barnes v. Occhino , 171 A.D.3d 1455, 1456, 99 N.Y.S.3d 146 [4th Dept. 2019] ; Mancuso v. Collins , 32 A.D.3d 1325, 1326, 822 N.Y.S.2d 193 [4th Dept. 2006] ). Even assuming, arguendo, that defendant met his initial burden to that extent, we conclude that plaintiff raised a triable issue of fact in opposition by submitting the expert affirmation of his surgeon (see Grier v. Mosey , 148 A.D.3d 1818, 1819-1820, 50 N.Y.S.3d 759 [4th Dept. 2017] ; see also Cicco v. Durolek , 147 A.D.3d 1487, 1488, 47 N.Y.S.3d 198 [4th Dept. 2017] ).
We likewise agree with plaintiff that the court erred in granting the motion insofar as it sought summary judgment dismissing the claim for economic loss in excess of basic economic loss inasmuch as there are triable issues of fact with respect thereto (cf. Cicco , 147 A.D.3d at 1488, 47 N.Y.S.3d 198 ). We therefore further modify the order accordingly.