| D'Auria v Kent |
| 2011 NY Slip Op 00138 [80 AD3d 956] |
| January 13, 2011 |
| Appellate Division, Third Department |
| Elaine D. D'Auria, Appellant, v Richard W. Kent et al.,Respondents. |
—[*1] O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains (Matthew E. Kelly ofcounsel), for Richard W. Kent and another, respondents. Burke, Scolamiero, Mortati & Hurd, L.L.P., Albany (John D. Holt of counsel), for MahadeoDinghoor, respondent.
Garry, J. Appeal from an order of the Supreme Court (Reilly Jr., J.), entered February 4, 2010in Schenectady County, which granted defendants' motions for summary judgment dismissing thecomplaint.
In June 2007, plaintiff's vehicle was struck by a vehicle owned and driven by defendantMahadeo Dinghoor. Nineteen days later, her vehicle was rear-ended by a vehicle driven bydefendant Richard W. Kent and owned jointly with his wife, defendant Susan M. Kent. Plaintiffsubsequently commenced personal injury actions against Dinghoor and the Kents.[FN1]The actions were consolidated and defendants thereafter moved for summary judgmentdismissing the complaint on the ground that plaintiff did not sustain a serious injury (seeInsurance Law § 5102 [d]). Supreme Court granted the motions, and plaintiff appeals.[*2]
For the first time on appeal, plaintiff contends thatdefendants' motions were procedurally defective in that copies of all pleadings were not included(see CPLR 3212 [b]; BondedConcrete v Town of Saugerties, 3 AD3d 729, 730 [2004], lv dismissed 2 NY3d793 [2004]). Had this claim been preserved for review (see Chapman v Pyramid Co. of Buffalo, 63 AD3d 1623, 1624[2009]; Goodspeed v Adirondack Med.Ctr., 43 AD3d 597, 598 [2007]), we would find it meritless. Dinghoor's failure toinclude a bill of particulars was not the omission of a pleading (see CPLR 3011, 3041;Plante v Hinton, 271 AD2d 781, 783 [2000]), and the Kents' omission was excusable aswe find the record "sufficiently complete to address the merits" (Sanacore v Sanacore, 74 AD3d1468, 1469 [2010]; see Welch vHauck, 18 AD3d 1096, 1098 [2005], lv denied 5 NY3d 708 [2005]).
Plaintiff contends that she sustained a serious injury within the significant limitation and90/180-day categories (see Insurance Law § 5102 [d]) consisting of injuries to hercervical, thoracic and lumbar spine, and her left elbow.[FN2]In support of their summary judgment motions, defendants were required to submit competentmedical evidence that plaintiff did not suffer a causally-related serious injury (see CPLR3212 [b]; Tracy v Tracy, 69 AD3d1218, 1219 [2010]). Defendants submitted the affidavit of Louis Benton Jr., an orthopedicsurgeon, who reviewed plaintiff's medical records and noted that, before the two subjectaccidents, she had sought medical treatment on numerous occasions for back pain and musclespasms resulting from two falls and an exercise injury in 2006 and 2007.[FN3]Benton further noted that plaintiff's back symptoms were adversely affected by her weight, andopined that there was no objective evidence that her back condition was altered by either of thevehicle accidents. This evidence was sufficient to establish on a prima facie basis that plaintiff'sback problems resulted from her preexisting condition and were not causally related to thevehicle accidents (see Anderson vCapital Dist. Transp. Auth., 74 AD3d 1616, 1616-1617 [2010], lv denied 15NY3d 709 [2010]; Coston vMcGray, 49 AD3d 934, 934-935 [2008]).
As to the elbow injury, however, Benton merely opined in a single paragraph that plaintiff'sdiagnosis was "a subjective complaint and there are no objective findings to support the same."As plaintiff argues, Benton thus wholly failed to consider or address an MRI study obtainedapproximately one year prior to his medical record review. Further, it appears from the face ofthe affirmed MRI report that the results of this objective test may support the findings ofplaintiff's treating physician and the report of another medical examiner upon which plaintiffrelies, both of whom attributed her disability, to some unspecified degree, to the elbow injury andresulting limitation of use and function of her left arm and elbow. This failure thus presented afatal flaw in defendants' motions; it is simply not possible to determine, as a matter of law uponthe record presented, to what extent plaintiff's alleged disability related to the elbow injury, asopposed to the claimed back and spine injuries, nor whether the limitations arising from theelbow injury were more than "minor, mild or slight" (Parks v Miclette, 41 AD3d 1107, 1109-[*3]1111 [2007] [internal quotation marks and citationsomitted]).[FN4]Therefore, finding that defendants failed to meet their burden of demonstrating a right tojudgment in their favor as a matter of law, we reverse the order granting defendants' motionsdismissing the complaints.
Cardona, P.J., Mercure, Lahtinen and Stein, JJ., concur. Ordered that the order is reversed, onthe law, with costs, and motions denied.
Footnote 1: The second action also includeda claim against another individual which was subsequently dismissed.
Footnote 2: Plaintiff's bill of particularsasserts additional categories, but these were unaddressed and thus abandoned (see Mrozinskiv St. John, 304 AD2d 950, 951 [2003]).
Footnote 3: These records reveal thatplaintiff sought treatment at least 14 times for back problems that prevented her from sitting,standing upright or sleeping, and caused pain that she described as "sawing" and "stabbing."
Footnote 4: Though it appears the elbowinjury may be attributed to only one of the subject accidents, this is similarly not clearly revealedon the record presented.