| Garza v Taravella |
| 2010 NY Slip Op 05106 [74 AD3d 1802] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Esmeralda Garza, Respondent, v Michael A. Taravella, Appellant,et al., Defendant. |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), enteredSeptember 29, 2009 in a personal injury action. The order, insofar as appealed from, denied inpart the motion of defendant Michael A. Taravella for summary judgment and granted in part thecross motion of plaintiff for partial summary judgment.
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 allegedlysustained when her vehicle collided with a vehicle operated by Michael A. Taravella (defendant)and owned by defendant Carolyn A. Wozniak. Defendant moved for summary judgmentdismissing the complaint against him on the ground that plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d), and plaintiff cross-moved for partialsummary judgment on liability. Contrary to the contention of defendant, we conclude thatSupreme Court properly denied those parts of his motion with respect to the permanentconsequential limitation of use and significant limitation of use categories of serious injury.Although we agree with defendant that he met his initial burden on those parts of the motion bysubmitting the report of the physician who examined plaintiff at his request establishing thatplaintiff's injuries had resolved, we conclude that plaintiff raised a triable issue of fact inopposition. Plaintiff submitted the affidavit of her treating chiropractor and the affirmations ofher treating physicians indicating that she sustained neck and back injuries as a result of theaccident and that those injuries required surgery, would continue to limit her cervical ranges ofmotion and rendered her permanently disabled. Defendant's contention that those submissionsfailed to establish that plaintiff's injury was not the result of a preexisting condition is raised forthe first time on appeal and thus is not properly before us (see Ciesinski v Town ofAurora, 202 AD2d 984, 985 [1994]).
We reject defendant's further contention that plaintiff failed to explain a six-month gap intreatment. "[P]laintiff adequately explained the significant gap in her treatment history by statingin her affidavit that she stopped treatment [for] about [six] months after the subject accidentbecause . . . she [*2]could not afford to personallypay for further treatment" (Jules vBarbecho, 55 AD3d 548, 549 [2008]; see Francovig v Senekis Cab Corp., 41 AD3d 643, 644 [2007];Black v Robinson, 305 AD2d 438, 439-440 [2003]; see generally Pommells v Perez, 4 NY3d 566, 574 [2005]).Contrary to defendant's contention, there is no evidence in the record establishing that plaintiffknew that her medical bills would be paid by no-fault insurance during that six-month period(cf. McConnell v Freeman,52 AD3d 1190, 1191 [2008]).
We conclude that the court properly granted that part of plaintiff's cross motion for partialsummary judgment on the issue of defendant's negligence. The evidence submitted by plaintiff insupport of her cross motion, including defendant's deposition testimony, established thatdefendant struck the side of her vehicle after entering the roadway from a driveway and that hisview of oncoming traffic was obstructed. "The driver of a vehicle about to enter or cross aroadway from any place other than another roadway shall yield the right of way to all vehiclesapproaching on the roadway to be entered or crossed" (Vehicle and Traffic Law § 1143)."Defendant testified at [his] deposition that [he] saw plaintiff for the first time when [he] hadalready begun to pull out into the roadway and that [he] drove into the roadway despite the factthat [his] vision of the roadway was obscured by a legally parked vehicle. Plaintiff thusestablished that defendant was negligent as a matter of law in failing to see that which [he]should have seen" (Whitcombe vPhillips, 61 AD3d 1431 [2009]; see Mazza v Manzella, 49 AD3d 609 [2008]; Ferrara vCastro, 283 AD2d 392 [2001]), and defendant failed to raise a triable issue of fact inopposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Present—Martoche, J.P., Smith, Centra, Sconiers and Pine, JJ.