| Burke v Moran |
| 2011 NY Slip Op 05334 [85 AD3d 1710] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| Lucille M. Burke, Appellant, v Ryan D. Moran et al.,Respondents. |
—[*1] Burgio, Kita & Curvin, Buffalo (James P. Burgio of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), enteredApril 16, 2010 in a personal injury action. The order granted the motion of defendants forsummary judgment and dismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion in part and reinstating the complaint, as amplified by the bill of particulars,with respect to the permanent consequential limitation and significant limitation of use categoriesof serious injury within the meaning of Insurance Law § 5102 (d) and reinstating the claimfor economic loss in excess of basic economic loss, and as modified the order is affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained when the vehicle she was driving was rear-ended by a vehicle operated by defendantRyan D. Moran and owned by defendant Mary E. Moran. Defendants initially moved forsummary judgment dismissing the complaint on the ground that plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) and thereafter, in their reply papers,sought dismissal of plaintiff's claim for economic loss in excess of her basic economic loss.According to her bill of particulars, plaintiff sustained a serious injury under the permanent lossof use, permanent consequential limitation of use, significant limitation of use, and the90/180-day categories of serious injury. Plaintiff has abandoned her contention with respect topermanent loss of use, and we conclude that Supreme Court erred in granting those parts ofdefendants' motion with respect to the permanent consequential limitation of use and significantlimitation of use categories of serious injury. We therefore modify the order accordingly.
Defendants met their initial burden on the motion by submitting an expert's affirmationestablishing as a matter of law that there was no objective confirmation of plaintiff's pain and thatshe had not sustained "any objective injury which would have disabled her for more than 90 outof 180 days following the motor vehicle accident" or any objective injury that would constitute a"permanent consequential limitation of use of a body organ or member," or a "significantlimitation of use of a body function or system" (see Herbst v Marshall [appeal No. [*2]2], 49 AD3d 1194, 1195 [2008]). Defendants also submittedevidence indicating with respect to plaintiff's cervical spine that she had a "voluntary restrictionof rotation," "essentially normal" neurological examinations and "advanced degenerative discdisease."
In opposition to defendants' motion, however, plaintiff raised triable issues of fact withrespect to the permanent consequential limitation and significant limitation of use categories ofserious injury by submitting an expert affidavit and medical records demonstrating an objectivebasis for the reduced range of motion in her neck and containing a "numeric percentage of [her]loss of range of motion" (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; see Howard v Robb, 78 AD3d1589 [2010]; Feggins v Fagard,52 AD3d 1221, 1223-1224 [2008]; Moore v Gawel, 37 AD3d 1158 [2007]). Nevertheless, we agreewith defendants that the court properly granted that part of defendants' motion regarding the90/180-day category of serious injury. With respect to that category, plaintiff failed to raise anissue of fact whether she was unable to perform substantially all of the material acts thatconstituted her usual and customary daily activities during the requisite period of time (seeLicari v Elliott, 57 NY2d 230, 236 [1982]; Parkhill v Cleary, 305 AD2d 1088,1089-1090 [2003]).
Finally, we conclude that the court further erred in granting that part of defendants' motionseeking to dismiss plaintiff's claim for economic loss in excess of basis economic loss, inasmuchas defendants moved for that relief for the first time in their reply papers (see ClearwaterRealty Co. v Hernandez, 256 AD2d 100, 102 [1998]; Lumbermens Mut. Cas. Co. vMorse Shoe Co., 218 AD2d 624, 625-626 [1995]). We therefore further modify the orderaccordingly. Present—Scudder, P.J., Smith, Carni, Sconiers and Green, JJ.