| Bulls v Massara |
| 2010 NY Slip Op 02207 [71 AD3d 1408] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| Robbie Bulls, as Grandparent and Legal Guardian of Keyon Lee,an Infant, Appellant, v Robert Massara, Jr., et al., Respondents. |
—[*1] Law Office of Mary A. Bjork, Buffalo (Matthew T. Murray of counsel), fordefendant-respondent Robert Massara, Jr. Law Offices of Daniel R. Archilla, Buffalo (Thomas D. Seaman of counsel), fordefendant-respondent Nichelle Bulls.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (John A.Michalek, J.), entered December 29, 2008 in a personal injury action. The order and judgmentgranted the motion of defendants for summary judgment and dismissed the amended complaint.
It is hereby ordered that the order and judgment so appealed from is unanimously modifiedon the law by denying the motion in part and reinstating the amended complaint againstdefendant Nichelle Bulls and as modified the order and judgment is affirmed without costs.
Memorandum: Plaintiff, as grandparent and legal guardian of his grandson, commenced thisaction seeking damages for injuries sustained by his grandson when the vehicle in which thegrandson was a passenger, which was owned and operated by his mother, defendant NichelleBulls, was struck by a vehicle owned and operated by defendant Robert Massara, Jr. Contrary toplaintiff's contention, we conclude that Supreme Court properly granted the motion of Massarafor summary judgment dismissing the amended complaint against him on the ground that he wasnot negligent. Massara met his initial burden of establishing "both that [Bulls'] vehicle 'suddenlyentered the lane where [Massara] was operating [his vehicle] in a lawful and prudent manner andthat there was nothing [Massara] could have done to avoid the collision' " (Fratangelo vBenson, 294 AD2d 880, 881 [2002]; see e.g. Maleski v Lenander, 38 AD3d 1192 [2007], lvdenied 9 NY3d 803 [2007]; Pomietlasz v Smith, 31 AD3d 1173 [2006]; Rak v Kossakowski, 24 AD3d1191 [2005]). Neither plaintiff nor Bulls raised a triable issue of fact whether Massara wasnegligent in any respect (cf. Harris vJackson, 30 AD3d 1027 [2006]; Cooley v Urban, 1 AD3d 900 [2003]).
The record establishes that Bulls joined in Massara's motion to the extent that Massara alsosought summary judgment dismissing the amended complaint on the ground that plaintiff'sgrandson did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).We [*2]agree with plaintiff that the court erred in granting thatpart of the motion with respect to Bulls. Although Massara established his entitlement tosummary judgment dismissing the amended complaint against him on the ground that he was notnegligent, he failed to meet his initial burden of establishing "the absence of a serious injury as amatter of law" (McElroy v Sivasubramaniam, 305 AD2d 944, 945 [2003]). Thus, Bullslikewise is not entitled to summary judgment dismissing the amended complaint against her tothe extent that she joined in Massara's motion on that ground. We therefore modify the order andjudgment accordingly. Even assuming, arguendo, that we may consider the unsworn letter of anindependent medical examiner (IME) who examined plaintiff's grandson (see generallyGrasso v Angerami, 79 NY2d 813 [1991]), we conclude that the letter fails to establish thatplaintiff's grandson did not sustain a serious injury. The IME noted in his letter that his findingswere not objective, and we thus conclude that the IME's letter does not establish by the requisite"qualitative, objective medical proof" that plaintiff's grandson did not sustain a serious injury(Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). Indeed, the IME documentedsignificant losses in the range of motion in the cervical spine of plaintiff's grandson and, even ifthat finding was based merely on subjective evidence, we conclude at the very least that theletter of the IME itself raises a triable issue of fact whether plaintiff's grandson sustained aserious injury. Thus, the burden never shifted to plaintiff to raise an issue of fact in that respect(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Present—Scudder, P.J., Smith, Lindley and Pine, JJ.