| Limardi v McLeod |
| 2012 NY Slip Op 07444 [100 AD3d 1375] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| Michael Limardi, Respondent, v Barbara M. McLeod et al.,Appellants. |
—[*1] Spadafora & Verrastro, LLP, Buffalo (Joseph C. Todoro of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), enteredAugust 2, 2011 in a personal injury action. The order, insofar as appealed from, granted that partof the motion of plaintiff for summary judgment on the issue of negligence and denied the crossmotion of defendants for summary judgment on the issue of serious injury.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of defendants' cross motion for summary judgment dismissing the complaintinsofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff sustained aserious injury under the permanent loss of use category of serious injury within the meaning ofInsurance Law § 5102 (d) and dismissing the complaint to that extent, and as modified theorder is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen his vehicle was struck by a vehicle operated by defendant Barbara M. McLeod (defendant)and owned by defendant Leslie S. McLeod. Plaintiff moved for partial summary judgment onliability (see Ruzycki v Baker, 301 AD2d 48, 51 [2002]), and defendants cross-moved forsummary judgment dismissing the complaint on the ground that plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d). Supreme Court granted that part ofplaintiff's motion on the issue of negligence, denied that part of plaintiff's motion on the issue ofserious injury, and denied the cross motion.
We reject defendants' contention that there is an issue of fact with respect to plaintiff'scomparative negligence. Plaintiff met his initial burden on the motion of establishing thatdefendant was negligent as a matter of law and that her negligence was the sole proximate causeof the accident (see Whitcombe vPhillips, 61 AD3d 1431, 1431 [2009]; Pomietlasz v Smith, 31 AD3d 1173, 1174 [2006]). Specifically,plaintiff established that defendant violated Vehicle and Traffic Law § 1141 by turning leftat an intersection directly into the path of plaintiff's vehicle and that defendant's failure to yieldthe right-of-way was the sole proximate cause of the accident (see Waltz v Vink, 78 AD3d 1621,1621-1622 [2010]; Pomietlasz, 31 AD3d at 1174; Gabler v Marly Bldg. Supply Corp., 27 AD3d 519, 520 [2006]). Inopposition to the motion, defendants failed to raise a triable issue of fact whether plaintiff wasalso negligent (see Pomietlasz, 31 AD3d at 1174; [*2]Berner v Koegel, 31 AD3d 591,592 [2006]; Maloney v Niewender,27 AD3d 426, 426-427 [2006]). Defendants' sole contention is that, because defendant couldsee plaintiff's vehicle approaching from two blocks away, plaintiff should likewise have beenable to observe defendant's vehicle and to take evasive action when defendant turned in front ofhim. However, "[t]he record does not support [defendants'] contention that a triable issue of factexists as to whether the plaintiff was comparatively negligent in the operation of [his] vehiclebecause [ ]he failed to brake, sound [his] horn, or otherwise try to avoid the collision"(Berner, 31 AD3d at 592). "As . . . plaintiff had the right-of-way, [ ]he wasentitled to anticipate that . . . defendant would obey the traffic laws, which required. . . defendant to yield to . . . plaintiff's vehicle" (id. at592-593; see Gabler, 27 AD3d at 520).
Although the fact that defendant made a left turn in front of plaintiff's vehicle does notabsolve plaintiff of the duty to exercise reasonable care in proceeding through the intersection(see Halbina v Brege, 41 AD3d1218, 1219 [2007]; Cooley vUrban, 1 AD3d 900, 900 [2003]), there is no evidence in this case that plaintiff failed toexercise such care (cf. Halbina, 41 AD3d at 1219; Strasburg v Campbell, 28 AD3d 1131, 1132 [2006];Cooley, 1 AD3d at 900-901). Instead, plaintiff testified at his deposition that he was notspeeding, that his view of the intersection was unobstructed, and that he did not see defendant'svehicle until the collision, and defendants offered only mere speculation to the contrary (seePomietlasz, 31 AD3d at 1174; Maloney, 27 AD3d at 427). We thus conclude that thecourt properly granted that part of plaintiff's motion on the issue of negligence (seeWaltz, 78 AD3d at 1621).
Contrary to the further contention of defendants, we conclude that there is an issue of factwhether plaintiff sustained a serious injury under the significant limitation of use, permanentconsequential limitation of use, and 90/180 day categories. Even assuming, arguendo, thatdefendants met their initial burden on the cross motion with respect to each of those threecategories of serious injury, we conclude that plaintiff raised an issue of fact in opposition. Withrespect to the permanent consequential limitation of use and significant limitation of usecategories, plaintiff submitted objective evidence of injury to his neck and back, i.e., X rays, MRIreports, and doctors' observations of muscle spasms upon palpation of his cervical and lumbarspine (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]; Nitti vClerrico, 98 NY2d 345, 358 [2002]; see also Mancuso v Collins, 32 AD3d 1325, 1326 [2006]). Amongother things, an MRI of plaintiff's lumbar spine revealed a disc herniation at L4-L5, whichplaintiff's treating chiropractor opined was "100% causally related" to the accident. Plaintifffurther submitted records from several medical providers quantifying range of motion losses inhis cervical and lumbar spine (seeAustin v Rent A Ctr. E., Inc., 90 AD3d 1542, 1544 [2011]).
With respect to the 90/180 day category, plaintiff submitted evidence establishing that he wasout of work for approximately nine months after the accident at the direction of his treatingphysicians, after which he returned to work light duty. Additionally, plaintiff testified at hisdeposition and averred in an affidavit that, after the accident, he was unable to perform hiscustomary job duties, including lifting five-gallon buckets of paint, climbing ladders or scaffolds,or kneeling, stooping, crouching, or extending his arms over his head. Plaintiff further stated thathe was "unable to do the physical types of things that [he] could before th[e accident]," includingcleaning the house, shopping for groceries, doing laundry, cutting the grass, and taking thegarbage out. We thus conclude that plaintiff raised an issue of fact whether he was preventedfrom performing his usual and customary activities during the requisite time period as a result ofthe accident (see Rissew v Smith,89 AD3d 1383, 1384 [2011]; seealso Downs v Kehoe, 39 AD3d 1152, 1153 [2007]; Zeigler v Ramadhan, 5 AD3d 1080, 1081 [2004]).
We agree with defendants, however, that they established as a matter of law that plaintiff didnot sustain a serious injury under the permanent loss of use category, i.e., that plaintiff did [*3]not sustain a " 'total loss of use' of a body organ, member, functionor system" (Schreiber v Krehbiel, 64AD3d 1244, 1245 [2009], quoting Oberly v Bangs Ambulance, 96 NY2d 295, 297[2001]), and that plaintiff failed to raise a triable issue of fact in opposition (see Paveljack v Cirino, 93 AD3d1286, 1286 [2012]; Harris vCarella, 42 AD3d 915, 917 [2007]). We therefore modify the order accordingly.Present—Fahey, J.P., Peradotto, Carni and Sconiers, JJ.