| Hartman-Jweid v Overbaugh |
| 2010 NY Slip Op 01197 [70 AD3d 1399] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Diane S. Hartman-Jweid, Appellant, v Matthew K. Overbaugh,Respondent. |
—[*1] Mackenzie Hughes LLP, Syracuse (Ryan T. Emery of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.),entered December 3, 2008 in a personal injury action. The order granted the motion of defendantfor summary judgment and dismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen her vehicle collided with a vehicle driven by defendant. We conclude that Supreme Courtproperly granted defendant's motion seeking summary judgment dismissing the complaint, whichsought damages for both serious injury (see Insurance Law § 5102 [d]), and loss ofearnings relating to injuries that did not constitute serious injuries. Defendant met his burden ofestablishing that plaintiff did not sustain a serious injury under the three categories alleged byplaintiff in the complaint, as amplified by the bill of particulars, i.e., permanent consequentiallimitation of use, significant limitation of use and 90/180-day categories, and plaintiff failed toraise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557,562 [1980]).
In support of his motion, defendant submitted the affirmation and report of an orthopedicsurgeon who examined plaintiff at his request. Defendant's expert concluded, based on hisexamination of plaintiff and his review of her medical records, that the only objective medicalfindings with respect to any alleged injury related to a preexisting degenerative condition of thespine. "[W]ith persuasive evidence that plaintiff's alleged pain and injuries were related to apreexisting condition, plaintiff had the burden to come forward with evidence addressingdefendant's claimed lack of causation" and, here, plaintiff failed to meet that burden(Carrasco v Mendez, 4 NY3d 566, 580 [2005]; see Lux v Jakson, 52 AD3d 1253 [2008]). Although plaintiffsubmitted the affidavits of a chiropractor and her treating physician in opposition to the motion,neither affidavit addressed the conclusion of defendant's expert that the changes in plaintiff'sspine were degenerative in nature (seeMarsh v City of New York, 61 AD3d 552 [2009]; Valentin v Pomilla, 59 AD3d 184, 186 [2009]; Lux, 52AD3d 1253 [2008]).
Defendant further established that the additional nonpermanent injuries alleged in the [*2]complaint, as amplified by the bill of particulars, were not causallyrelated to the accident and thus were insufficient to establish that plaintiff sustained a seriousinjury in the accident under the 90/180-day category. Indeed, the affirmed report of defendant'sexpert indicates that those injuries lacked a physiological base and that any limitation inplaintiff's activities was self-imposed (see Marsh, 61 AD3d 552 [2009]). The expertaffidavits submitted by plaintiff in opposition to the motion address only her alleged spinalinjuries, which as noted were related to a preexisting degenerative condition, and thus plaintifffailed to raise a triable issue of fact with respect to the 90/180-day category.
Finally, we reject the contention of plaintiff that the court erred in granting that part ofdefendant's motion concerning her claim for loss of earnings that continue beyond the three-yearstatutory period (see generally Insurance Law § 5102 [a] [2]). Although a plaintiffneed not sustain a serious injury to support such a claim (see Colvin v Slawoniewski, 15 AD3d 900 [2005]; Tortorello vLandi, 136 AD2d 545 [1988]), defendant met his initial burden by establishing that plaintiffdid not sustain any injury that was causally related to the accident and that any limitation onplaintiff's activities was self-imposed, and plaintiff failed to raise a triable issue of fact withrespect to that claim. Present—Smith, J.P., Peradotto, Lindley, Green and Gorski, JJ.