| Colavito v Steyer |
| 2009 NY Slip Op 06101 [65 AD3d 735] |
| August 6, 2009 |
| Appellate Division, Third Department |
| Angela Colavito, Respondent, v Nicholas P. Steyer,Appellant. |
—[*1] Basch & Keegan, L.L.P., Kingston (Derek J. Spada of counsel), for respondent.
Kane, J. Appeal from an order of the Supreme Court (Lynch, J.), entered June 19, 2008 inUlster County, which denied defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff commenced this action to recover for injuries to her right shoulder allegedlysustained in a motor vehicle accident. Defendant moved for summary judgment dismissing thecomplaint on the basis that plaintiff did not suffer a serious injury (see Insurance Law§ 5102 [d]; § 5104 [a]). Supreme Court denied the motion, prompting defendant'sappeal. We affirm.
Defendant failed to meet his initial burden of proving, as a matter of law, that plaintiff didnot sustain a serious injury (see Smallsv AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Santos v Marcellino, 297 AD2d440, 441 [2002]). Defendant's experts, relying on an MRI taken shortly after the accident, opinedthat plaintiff's symptoms were related to a preexisting condition and, thus, were not causallyrelated to the accident. Yet the experts failed to address any aggravation of the preexistingcondition, which had reportedly been asymptomatic prior to the accident (see Ashquabe v McConnell, 46 AD3d1419, 1419 [2007]; Madden vDake, 30 AD3d 932, 936 [2006]). The experts—one of whom examined plaintiff18 months after the accident and the other who did not examine her at all—also did notadequately address plaintiff's condition or limitations within the first 180 days following theaccident, which was necessary to foreclose the 90/180-day category of serious injury (see Ames v Paquin, 40 AD3d1379, 1380 [2007]; Lowell vPeters, 3 AD3d 778, 780 [2004]). Accordingly, Supreme Court correctly held thatdefendant [*2]failed to prove his entitlement to summaryjudgment.
Supreme Court also correctly held that had defendant met his initial burden, plaintiff'sresponse raised triable factual issues. Plaintiff submitted her own affidavit which denied anypreexisting problems with her shoulder and detailed her inability to perform most ordinary andcustomary tasks of daily living. She also submitted an affirmation from her physician, whotreated plaintiff within the first 180 days following the accident. That physician opined thatplaintiff's symptoms were caused by the accident and necessitated surgery, she wasasymptomatic prior to the accident and was permanently incapable of returning to herpreaccident physical condition. Medical records, including quantified results of plaintiff's limitedrange of motion, were attached to the affirmation to support these opinions (compare Wolff v Schweitzer, 56 AD3d859, 862 [2008]). Consequently, plaintiff's response raised triable issues regarding whethershe suffered a serious injury as a result of this accident, requiring the denial of defendant'smotion (see Madden v Dake, 30 AD3d at 936; Mrozinski v St. John, 304 AD2d950, 952-953 [2003]).
Mercure, J.P., Rose and Garry, JJ., concur. Ordered that the order is affirmed, with costs.