| Smith v Besanceney |
| 2009 NY Slip Op 03218 [61 AD3d 1336] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| Kimberly A. Smith et al., Respondents, v Carrie EmmaBesanceney, Appellant. |
—[*1] Law Office of Robert H. Perk, Buffalo (Robert H. Perk of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), enteredJune 5, 2008 in a personal injury action. The order, insofar as appealed from, denied in partdefendant's motion for summary judgment dismissing the complaint.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is granted in its entirety and the complaint is dismissed.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byKimberly A. Smith (plaintiff) when the vehicle she was operating was rear-ended by a vehicleowned and operated by defendant. Defendant moved for summary judgment dismissing thecomplaint on the ground that plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d). Supreme Court granted the motion with respect to thepermanent loss of use and 90/180 categories of serious injury and denied the motion with respectto the permanent consequential limitation of use and significant limitation of use categories. Weconclude that the court should have granted the motion in its entirety.
At the outset, we conclude that defendant's contention concerning the failure of plaintiffs toallege in their bill of particulars that plaintiff suffered a serious injury under the permanentconsequential limitation of use category is not properly before us. Defendant failed to challengethe sufficiency of the bill of particulars, and "[a]n issue may not be raised for the first time onappeal . . . where it 'could have been obviated or cured by factual showings or legalcountersteps' in the trial court" (Oram v Capone, 206 AD2d 839, 840 [1994], quotingTelaro v Telaro, 25 NY2d 433, 439 [1969], rearg denied 26 NY2d 751 [1970];see Lowe's Home Ctrs., Inc. v Beachy'sEquip. Co., Inc., 49 AD3d 1213, 1214-1215 [2008], lv denied 10 NY3d 715[2008]). Here, plaintiffs could have cured that alleged deficiency by moving for leave to amendthe bill of particulars.
We further conclude that defendant met her burden of establishing that plaintiff's allegedpsychological injury does not constitute a serious injury under the permanent consequentiallimitation of use or significant limitation of use category. Although " 'a causally-relatedemotional injury, alone or in combination with a physical injury, can constitute a serious injury' "(Brandt-Miller v McArdle, 21AD3d 1152, 1153 [2005]; seeTaranto v McCaffrey, 40 AD3d 626, 627 [2007]; see also Cushing v Seemann,247 AD2d 891, 892 [1998]), defendant nevertheless met her burden with respect to plaintiff'salleged psychological injury by submitting, inter alia, the affirmation and the report of thephysician who examined plaintiff at defendant's request (see generally Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). In opposition to the motion, plaintiffs submitted theaffirmations of two of plaintiff's treating physicians that failed to set forth the manner in whichplaintiff's alleged psychological injury was related to the accident (see Kristel v Mitchell,270 AD2d 598, 599 [2000]; see generally Toure v Avis Rent A Car Sys., 98 NY2d 345,350-351 [2002]).
We reach the same conclusion with respect to plaintiff's alleged physical injuries under thepermanent consequential limitation of use and significant limitation of use categories. "For[those] two statutory categories, [the Court of Appeals has] held that [w]hether a limitation ofuse or function is significant or consequential (i.e., important . . .) relates to medicalsignificance and involves a comparative determination of the degree or qualitative nature of aninjury based on the normal function, purpose and use of the body part" (Toure, 98 NY2dat 353 [internal quotation marks omitted]; see Beaton v Jones, 50 AD3d 1500, 1501 [2008]). Defendant mether initial burden with respect to those two categories. In opposition to the motion, plaintiffssubmitted only one physician's affirmation that contained a substantive discussion of plaintiff'salleged physical injuries sustained in the accident. Although that physician set forth certainobjective findings, including a quantification of plaintiff's loss of range of thoracic motion andthe positive Tinel's sign in plaintiff's left wrist (see Moore v Gawel, 37 AD3d 1158 [2007]; Mancuso v Collins, 32 AD3d1325 [2006]; Jones v Fraser, 265 AD2d 773, 774-775 [1999]; Booker vMiller, 258 AD2d 783, 784-785 [1999]), he failed to address the manner in which plaintiff'sphysical injuries were causally related to the accident in light of the past medical history ofplaintiff, including the two motor vehicle accidents in which she had been involved prior to theaccident in question, as well as a subsequent minor collision (see Anania v Verdgeline, 45 AD3d 1473 [2007]; McCarthy v Bellamy, 39 AD3d1166 [2007]). Present—Hurlbutt, J.P., Smith, Fahey, Green and Pine, JJ.