BLEIER, WILLIAM J. v. MULVEY, GREGORY J. ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
116
CA 14-01342
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND VALENTINO, JJ.
WILLIAM J. BLEIER, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
GREGORY J. MULVEY AND MULVEY CONSTRUCTION, INC.,
DEFENDANTS-APPELLANTS.
RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, ROCHESTER (ALISON
K.L. MOYER OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
BRENNA, BRENNA & BOYCE, PLLC, ROCHESTER (ROBERT L. BRENNA, JR., OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an amended order of the Supreme Court, Monroe County
(J. Scott Odorisi, J.), entered May 6, 2014. The amended order,
insofar as appealed from, denied in part defendants’ motion for
summary judgment dismissing the complaint.
It is hereby ORDERED that the amended order insofar as appealed
from is unanimously reversed on the law without costs, the motion is
granted in its entirety and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained when a vehicle he was operating was
rear-ended by a vehicle owned by defendant Mulvey Construction, Inc.
and operated by defendant Gregory J. Mulvey. Defendants moved for
summary judgment on the ground that plaintiff did not sustain a
serious injury within the meaning of Insurance Law § 5102 (d) and
Supreme Court granted their motion only in part, denying the motion
with respect to the permanent consequential limitation of use and
significant limitation of use categories of serious injury. We agree
with defendants that the court should have granted their motion in its
entirety. Defendants met their burden with respect to those two
categories by submitting the affirmed reports of a physician who
examined plaintiff on their behalf and reviewed plaintiff’s medical
records. The physician concluded that plaintiff had sustained only a
minor cervical strain in the accident, that the injury had resolved,
that the limitations he measured in plaintiff’s range of motion were
evidenced solely by subjective complaints of pain, and that there was
no objective evidence of any injury causally related to the accident
(see Griffo v Colby, 118 AD3d 1421, 1422; Wilson v Colosimo, 101 AD3d
1765, 1766). The evidence submitted by plaintiff in opposition to the
motion does not provide “either a quantitative or qualitative
assessment to differentiate serious injuries from mild or moderate
-2- 116
CA 14-01342
ones” (Clements v Lasher, 15 AD3d 712, 713, citing Toure v Avis Rent A
Car Sys., 98 NY2d 345, 350; see Malesa v Burg, 105 AD3d 1410, 1410-
1411), and is therefore insufficient to raise an issue of fact with
respect to either category (see generally Zuckerman v City of New
York, 49 NY2d 557, 562).
Entered: March 20, 2015 Frances E. Cafarell
Clerk of the Court