| D'Angelo v Litterer |
| 2011 NY Slip Op 06755 [87 AD3d 1357] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| Stephanie D'Angelo, Respondent, v Andrea S. Litterer,Appellant. |
—[*1] Brown Chiari LLP, Lancaster (Bradley D. Marble of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredSeptember 17, 2010 in a personal injury action. The order, insofar as appealed from, denied inpart the motion of defendant for summary judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is granted in its entirety and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained when the vehicle she was driving collided with a vehicle driven by defendant. SupremeCourt erred in denying in part defendant's motion seeking summary judgment dismissing thecomplaint on the ground that plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d). Defendant met her initial burden by submitting medical recordsand the report of the physician who conducted a medical examination on defendant's behalfestablishing that the injuries allegedly sustained by plaintiff in the accident were preexisting."Because defendant submitted 'persuasive evidence that plaintiff's alleged pain and injuries wererelated to . . . preexisting condition[s], plaintiff had the burden to come forwardwith evidence addressing defendant's claimed lack of causation' " (Clark v Perry, 21 AD3d 1373,1374 [2005], quoting Pommells vPerez, 4 NY3d 566, 580 [2005]). Plaintiff, however, failed to meet that burden. Indeed,her "submissions in opposition to the motion did not 'adequately address how plaintiff's currentmedical problems, in light of [plaintiff's] past medical history, are causally related to the subjectaccident' " (Anania v Verdgeline, 45AD3d 1473, 1474 [2007]; seeHartman-Jweid v Overbaugh, 70 AD3d 1399, 1400 [2010]). Present—Smith, J.P.,Centra, Carni, Green and Martoche, JJ.