Opinion
908 CA 21-01112
12-23-2022
Shanieka WRIGHT, Plaintiff-Appellant, v. Jeremiah WILSON and Barry Wilson, Defendants-Respondents.
PENBERTHY LAW GROUP LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), FOR PLAINTIFF-APPELLANT. LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PENBERTHY LAW GROUP LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries that she allegedly sustained in a rear-end motor vehicle collision. Plaintiff alleges that, as a result of the accident, she sustained serious injuries under the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories of Insurance Law § 5102 (d). Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102 (d). Plaintiff cross-moved for partial summary judgment on, inter alia, the issue of serious injury. Supreme Court, inter alia, granted that part of defendants’ motion for summary judgment dismissing plaintiff's claims under the permanent consequential limitation of use and 90/180-day categories, denied that part of defendants’ motion with respect to the significant limitation of use category, and denied those parts of plaintiff's cross motion with respect to the three aforementioned categories of serious injury. Plaintiff appeals and we affirm.
We conclude that, contrary to plaintiff's contentions on appeal, the court properly denied those parts of her cross motion with respect to the three categories of serious injury in question, and properly granted defendants’ motion insofar as it sought summary judgment dismissing plaintiff's claims under the permanent consequential limitation of use and 90/180-day categories. With respect to the 90/180-day category, we conclude that defendants met their initial burden on the motion. "To qualify as a serious injury under the 90/180[-day] category, there must be objective evidence of a medically determined injury or impairment of a non-permanent nature ... as well as evidence that plaintiff's activities were curtailed to a great extent" ( Zeigler v. Ramadhan , 5 A.D.3d 1080, 1081, 774 N.Y.S.2d 211 [4th Dept. 2004] [internal quotation marks omitted]; see Licari v. Elliott , 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982] ). Here, defendants properly relied on plaintiff's deposition testimony, which established that her typical daily activities had not been significantly curtailed during the relevant time frame (see Cohen v. Broten , 197 A.D.3d 949, 950, 150 N.Y.S.3d 656 [4th Dept. 2021] ; McIntyre v. Salluzzo , 159 A.D.3d 1547, 1547-1548, 72 N.Y.S.3d 718 [4th Dept. 2018] ; Kracker v. O'Connor , 158 A.D.3d 1324, 1325, 70 N.Y.S.3d 730 [4th Dept. 2018] ). In opposition, plaintiff did not raise an issue of fact (see Cohen , 197 A.D.3d at 950, 150 N.Y.S.3d 656 ; Pastuszynski v. Lofaso , 140 A.D.3d 1710, 1711, 33 N.Y.S.3d 635 [4th Dept. 2016] ; see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
With respect to the permanent consequential limitation of use category, a plaintiff must "submit objective proof of a permanent injury" to establish a qualifying serious injury ( McKeon v. McLane Co., Inc. , 145 A.D.3d 1459, 1461, 44 N.Y.S.3d 277 [4th Dept. 2016] ; see Schaubroeck v. Moriarty , 162 A.D.3d 1608, 1610, 79 N.Y.S.3d 794 [4th Dept. 2018] ). We conclude that defendants met their initial burden on the motion with respect to that category "by submitting evidence that plaintiff sustained only ... temporary [muscle] strain[s], rather than any significant injury to h[er] nervous system[, left shoulder] or spine, as a result of the accident" ( Williams v. Jones , 139 A.D.3d 1346, 1347, 31 N.Y.S.3d 348 [4th Dept. 2016] ; see Gamblin v. Nam , 200 A.D.3d 1610, 1613, 161 N.Y.S.3d 550 [4th Dept. 2021] ). We further conclude that plaintiff failed to raise an issue of fact in opposition with respect to that category (see generally Zuckerman , 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Smith v. State Farm Mut. Auto. Ins. Co. , 176 A.D.3d 1608, 1609, 111 N.Y.S.3d 765 [4th Dept. 2019] ). With respect to the significant limitation of use category, "[w]hether a limitation of use ... is significant or consequential ... 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" ( Toure v. Avis Rent A Car Sys., Inc ., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002], rearg denied 98 N.Y.2d 728, 749 N.Y.S.2d 478, 779 N.E.2d 189 [2002] [internal quotation marks omitted]; see Habir v. Wilczak , 191 A.D.3d 1320, 1322, 141 N.Y.S.3d 596 [4th Dept. 2021] ). We conclude that plaintiff did not satisfy her initial burden on the cross motion with respect to that category, inasmuch as her own submissions raise triable issues of fact whether, inter alia, she sustained merely "minor, mild or slight limitation[s] of use" with respect to her left shoulder and cervical and lumbar spine ( Crane v. Glover , 151 A.D.3d 1841, 1842, 59 N.Y.S.3d 212 [4th Dept. 2017] [internal quotation marks omitted]; see Savilo v. Denner , 170 A.D.3d 1570, 1570-1571, 96 N.Y.S.3d 420 [4th Dept. 2019] ; see generally Gaddy v. Eyler , 79 N.Y.2d 955, 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ).
We have considered plaintiff's remaining contentions and conclude that none warrants reversal or modification of the order.