| Chmiel v Figueroa |
| 2008 NY Slip Op 06059 [53 AD3d 1092] |
| July 3, 2008 |
| Appellate Division, Fourth Department |
| Gerald Chmiel, Appellant, v Doris Figueroa,Respondent. |
—[*1] Hagelin Kent LLC, Buffalo (Michael T. Hagelin of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), enteredFebruary 1, 2007 in a personal injury action. The order granted the motion of defendant forsummary judgment and dismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion in part and reinstating the complaint, as amplified by the bill of particulars,with respect to the permanent consequential limitation of use of a body organ or member,significant limitation of use of a body function or system, and significant disfigurementcategories of serious injury within the meaning of Insurance Law § 5102 (d) and asmodified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries he allegedlysustained when he was struck by a motor vehicle driven by defendant. Defendant moved forsummary judgment dismissing the complaint on the ground that plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d), and we conclude that SupremeCourt erred in granting the motion in its entirety. Although defendant met her initial burden withrespect to the permanent consequential limitation of use and significant limitation of usecategories of serious injury by establishing that plaintiff's alleged injuries were not causallyrelated to the accident but resulted from a preexisting condition (see generally Pommells v Perez, 4NY3d 566, 580 [2005]), plaintiff raised a triable issue of fact on causation with respect tothose categories by submitting objective evidence of his herniated disc as well as his loss ofmovement resulting from the spinal fusion surgery he underwent following the accident (see Yoonessi v Givens, 39 AD3d1164, 1165 [2007]; Coleman vWilson, 28 AD3d 1198 [2006]; Vitez v Shelton, 6 AD3d 1180, 1181-1182 [2004]). We furtherconclude with respect to the significant disfigurement category of serious injury that defendantfailed to meet her initial burden of establishing as a matter of law that plaintiff's surgical scars donot constitute a significant disfigurement (see Judd v Walton, 259 AD2d 1016 [1999]).We therefore modify the order accordingly.
We conclude, however, that the court properly granted that part of defendant's motion withrespect to the 90/180 category of serious injury. Defendant met her initial burden by establishingthat plaintiff was not prevented from performing substantially all of his customary [*2]activities during 90 of the first 180 days following the accident(see Yoonessi, 39 AD3d at 1165-1166; Thompson v Abbasi, 15 AD3d 95, 96-97 [2005]), and plaintifffailed to raise a triable issue of fact (seeRobinson v Polasky, 32 AD3d 1215 [2006]; Oribamie v Santiago, 12 AD3d 250 [2004], lv denied 4NY3d 711 [2005]). Present—Centra, J.P., Lunn, Fahey, Peradotto and Gorski, JJ.