| Schreiber v Krehbiel |
| 2009 NY Slip Op 05826 [64 AD3d 1244] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| James M. Schreiber et al., Respondents, v Sadie L.Krehbiel et al., Appellants. |
—[*1] Michael G. Cooper, Hamburg, for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered April15, 2008 in a personal injury action. The order, insofar as appealed from, denied in part themotion of defendants for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of the motion for summary judgment dismissing the complaint insofar as thecomplaint, as amplified by the bill of particulars, alleges that plaintiff James M. Schreibersustained a serious injury under the permanent loss of use of a body organ, member, function orsystem category of serious injury within the meaning of Insurance Law § 5102 (d) anddismissing the complaint to that extent with respect to that plaintiff, and by granting that part ofthe motion for summary judgment dismissing the complaint in its entirety with respect toplaintiff Shea M. Schreiber and dismissing the complaint in its entirety with respect to thatplaintiff, and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries they allegedlysustained in a motor vehicle accident. Plaintiff husband was a passenger in a motor vehicleoperated by plaintiff wife, who drove the vehicle into a ditch while attempting to avoid ahead-on collision with a motor vehicle operated by defendant Sadie L. Krehbiel. Defendantsmoved for summary judgment dismissing the complaint on the ground that neither plaintiffsustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe accident. Supreme Court granted the motion in part by dismissing the complaint insofar asthe complaint, as amplified by the bill of particulars, alleges that plaintiff wife sustained aserious injury under the permanent loss of use category. We agree with defendants that they alsoestablished as a matter of law that plaintiff husband did not sustain a serious injury under thepermanent loss of use category, i.e., he did not sustain a "total loss of use" of a body organ,member, function or system (Oberly v Bangs Ambulance, 96 NY2d 295, 297 [2001]),and we therefore modify the order accordingly. We further conclude, however, that the courtproperly denied the remainder of defendants' motion with respect to the remaining categories ofserious injury allegedly sustained by plaintiff husband. Defendants failed to meet their initialburden of [*2]establishing that his "alleged injuries sustained inthe accident were preexisting" (Clark vPerry, 21 AD3d 1373, 1374 [2005]; see Ashquabe v McConnell, 46 AD3d 1419 [2007]) or, if theywere, that they were not exacerbated by the accident (see Endres v Shelba D. Johnson Trucking, Inc., 60 AD3d 1481[2009]; Cebularz v Diorio, 32AD3d 975 [2006]). In support of their motion, defendants submitted the reports preparedfollowing independent medical examinations that concluded that the injuries to plaintiffhusband's lower back, neck, and left shoulder were caused by an injury at work that occurredprior to the motor vehicle accident. The independent medical examinations, however, wereconducted in the context of a previous worker's compensation claim concerning the injuriessustained by plaintiff husband at work. The examinations were not conducted to determinewhether the alleged injuries of plaintiff husband were exacerbated by the accident at issue on thisappeal, nor did defendants submit the results of an examination of plaintiff husband conducted attheir request with respect to that issue (cf. Schader v Woyciesjes, 55 AD3d 1292, 1293 [2008]). In anyevent, we conclude that plaintiffs raised a triable issue of fact with respect to causationconcerning the alleged injuries sustained by plaintiff husband (see Yoonessi v Givens, 39 AD3d1164, 1165 [2007]).
The court erred in denying the remainder of defendants' motion with respect to the remainingcategories of serious injury allegedly sustained by plaintiff wife, and thus the court should havegranted that part of defendants' motion for summary judgment dismissing the complaint in itsentirety with respect to plaintiff wife. We agree with defendants that they met their burden byestablishing as a matter of law that there was no objective evidence that plaintiff wife sustained aserious injury (see Constantine vSerafin, 16 AD3d 1145, 1145-1146 [2005]; see generally Toure v Avis Rent A CarSys., 98 NY2d 345, 350 [2002]; Caldwell v Malone, 2 AD3d 1378, 1379 [2003]). In any event,defendants established that plaintiff wife sustained only a slight limitation of use and thereforedid not sustain a serious injury under the permanent consequential limitation of use or significantlimitation of use categories of serious injury (see generally Gaddy v Eyler, 79 NY2d955, 957 [1992]; Lutgen v Czapla,1 AD3d 1036 [2003]). Finally, defendants established that the activities of plaintiff wife"were not curtailed to a great extent" and that she therefore did not sustain a serious injury underthe 90/180 category of serious injury (Burns v McCabe, 17 AD3d 1111, 1111 [2005]; see Licari vElliott, 57 NY2d 230, 236 [1982]). Plaintiffs failed to raise a triable issue of fact inopposition to that part of defendants' motion (see generally Alvarez v Prospect Hosp., 68NY2d 320, 324). We therefore further modify the order accordingly. Present—Centra,J.P., Peradotto, Green, Pine and Gorski, JJ.