| Bozza v O'Neill |
| 2007 NY Slip Op 06942 [43 AD3d 1094] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Daniel Bozza, Appellant, v Donna O'Neill et al.,Respondents. |
—[*1] Schondebare & Korcz (Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y.[Elliott J. Zucker] of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an orderof the Supreme Court, Suffolk County (Weber, J.), dated March 8, 2006, which granted themotion of the defendants Donna O'Neill and Michael V. O'Neill, and the separate motion of thedefendant HVT, Inc., for summary judgment dismissing the complaint insofar as asserted againstthem on the ground that he did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), and denied, as academic, his motion for summary judgment on the issue ofliability, and (2), as limited by his brief, from so much of an order of the same court dated April17, 2006, as, upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated March 8, 2006 is dismissed, as that order wassuperseded by the order dated April 17, 2006, made upon reargument; and it is further,
Ordered that the order dated April 17, 2006 is modified, on the law, by (1) deleting theprovision thereof, upon reargument, adhering to so much of the original determination in theorder dated March 8, 2006, as granted the motion of the defendants Donna O'Neill and [*2]Michael V. O'Neill and the separate motion of the defendant HVT,Inc., for summary judgment dismissing the complaint insofar as asserted against them, andsubstituting therefor a provision, upon reargument, vacating that portion of the order dated March8, 2006, which granted the motions for summary judgment and thereupon, denying thosemotions, and (2) deleting the provision thereof, upon reargument, adhering to so much of theoriginal determination in the order dated March 8, 2006, as denied, as academic, the plaintiff'smotion for summary judgment on the issue of liability, and substituting therefor a provision,upon reargument, vacating that portion of the order dated March 8, 2006, which denied, asacademic, the plaintiff's motion for summary judgment on the issue of liability and, thereupon,denying that motion; as so modified, the order dated April 17, 2006 is affirmed insofar asappealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
In support of his motion for summary judgment, the plaintiff submitted evidence establishingthat the accident occurred after the defendant Michael V. O'Neill (hereinafter O'Neill) proceededthrough a stop sign without first bringing his motor vehicle to a stop, in violation of Vehicle andTraffic Law § 1172 (a) (seeGonzalez v Schupak, 19 AD3d 367 [2005]). In opposition, the defendants submitted apolice report of the accident indicating that O'Neill failed to stop due to ice (see CPLR3212 [b]). The defendants attempted to invoke the emergency doctrine, by asserting that O'Neillskidded on ice and the accident was unavoidable.
In support of their respective motions for summary judgment, the defendants asserted that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).However, the defendants' proof in their respective motions never addressed the plaintiff's claim,clearly set forth in his bill of particulars, that he sustained a medically-determined injury orimpairment of a nonpermanent nature which prevented him from performing substantially all ofthe material acts which constituted his usual and customary activities for not less than 90 daysduring the 180 days immediately following the accident. The subject accident occurred onJanuary 30, 2003. At his deposition on June 8, 2004 the plaintiff testified that he did not return tohis job as director of nutrition at Brunswick Hospital following the accident and that his job was,in fact, terminated six months after the accident, when he was unable to provide his employerwith a return date. The defendants' medical expert did not relate his findings to this category ofserious injury for the period of time immediately following the accident (see Sayers v Hot, 23 AD3d 453[2005]). The defendants were not able to offer sufficient evidence to establish that the plaintiff'sinjuries either were solely attributable to a degenerative condition or were caused by asubsequent accident. Where, as here, a defendant does not meet this initial burden, the court"need not consider whether the plaintiff's opposition papers were sufficient to raise a triable issueof fact" (Jones v Jacob, 1 AD3d485, 486 [2003]). Accordingly, the defendants were not entitled to summary judgmentdismissing the complaint.
The plaintiff's proof was insufficient to establish as a matter of law that the accident wascaused through the unexcused negligent actions of the defendants (see Canh Du v Hamell, 19 AD3d1000 [2005]). The plaintiff also failed to establish as a matter of law that his injuries werecaused by the accident. Accordingly, the plaintiff was not entitled to summary judgment on theissue of liability. Spolzino, J.P., Ritter, Lifson and Angiolillo, JJ., concur.